Judgment reversed on the law and new trial granted. Memorandum: During defendant’s trial, after which he was convicted of two counts of murder in the second degree, his mother and brother were called as witnesses for the prosecution. Although the brother had given statements to the police and to the Grand Jury and the mother had given a statement to police relating admissions that defendant had made to them about the crime, at trial they testified that they were unable to recall anything defendant had said to them. Over the objection of defense counsel, the prosecutor was allowed to impeach the witnesses with their prior statements (CPL 60.35 [1]). The trial court relied on footnote 5 in People v Fuller (50 NY2d 628, 638). This was error. The failure of the witnesses to recall the events in question does not constitute affirmative damage to the prosecution case that would permit impeachment under the statute (People v Fitzpatrick, 40 NY2d 44, 52; People v Toney, 132 AD2d 955, Iv denied 70 NY2d 938; People v Navarette, 131 AD2d 326, Iv denied 70 NY2d 705; People v Johnson, 108 AD2d 1059; People v Gilbert, 99 AD2d 657). The jury was correctly instructed that the out-of-court statements were to be considered for impeachment only and did not constitute evidence in the case. However, the court in Fitzpatrick (supra, at 50) discussed the application of that principle and the difficulty of avoiding "having juries, when actually confronted with dramatically cogent impeaching evidence, treat it as though it were in fact direct evidence of guilt or innocence in criminal trials”. This can only have been the purpose of the prosecution in this case because on summation the prosecutor acknowledged that the physical evidence was weak and emphasized that the most cogent and material evidence was the reluctance of defendant’s brother to testify. He argued that this reluctance was significant direct evidence that defendant intentionally killed Paul Gross. It is apparent that that argument depends for its meaning on having the jury infer not only that the purported inability to recall was not credible, but also that defendant had in fact made admissions. Thus, the prejudice to defendant from this improper impeachment is clear, and it should not be permitted.
In addition, it was improper to allow defendant’s brother to be impeached by his out-of-court testimony after he denied telling his mother about defendant’s admissions. Because this was a statement concerning an act by the witness rather than by defendant, it did not bear on a material element of the prosecution’s case (see, People v Johnson, supra, at 1060).
*939These errors cannot be considered harmless because the circumstantial evidence against defendant was not overwhelming (see, People v Crimmins, 36 NY2d 230, 241); although defendant was seen in the victim’s Cadillac on the night of the killing, there was no evidence placing defendant at the crime scene.
All concur, except Green and Balio, JJ., who dissent and vote to affirm, in the following memorandum.