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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. AARON FERGUSON, Appellant.

Ordered that the judgment is affirmed.

The defendant's claim that the prosecutor engaged in misconduct during the cross-examination of one of his witnesses is largely unpreserved for appellate review ( see People v. Hobbs, 1 AD3d 610; People v. Hunte, 276 AD2d 717; People v. Green, 272 AD2d 341). In any event, the defendant was not deprived of a fair trial by the allegedly improper conduct ( see People v. Hunte, supra; People v. Green, supra).

The defendant failed to demonstrate a substantial likelihood of prejudice when one of the prosecutors testified in rebuttal, solely to authenticate an audiotape of a conversation with a defense witness ( see People v. Paperno, 54 NY2d 294; People v. Cannady, 243 AD2d 642; People v. Strawder, 106 AD2d 672; People v. Lester, 99 AD2d 611).

The defendant's contention that the trial court erred in permitting the People to introduce the audiotape in rebuttal is unpreserved for appellate review ( see People v. Bailey, 12 AD3d 377, lv denied 4 NY3d 741; People v. Maldonado, 212 AD2d 808). In any event, the audiotape was properly admitted since it contradicted the testimony of the defense witness regarding the issue of self-defense. Although the audiotape tended to impeach the credibility of the witness, it was not collateral, since it related to a material issue in the case ( see People v. Wise, 46 NY2d 321; People v. Rosario, 298 AD2d 244; People v. Wilson, 297 AD2d 298; People v. Green, 197 AD2d 704).

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PEOPLE v. FERGUSON
(Feb 28, 2005)