(concurring). I write to direct attention to an issue that has not yet been resolved, although a number of Appellate Division cases treat it as such — whether prior testimony that is otherwise admissible under an exception to the hearsay rule may be admitted in contravention of CPL 670.10. While I concur in the result in this case, my rationale is constrained by the well recognized statutory restriction on the use of prior testimony, to which only a single exception (not pertinent here) has been recognized by the Court of Appeals (Peter Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 670.10 at 72-73).
The issue briefed by the parties and resolved by the majority is whether a witness’s prior grand jury testimony was properly received as evidence-in-chief under the past recollection recorded exception to the hearsay rule. The threshold issue, however, is whether the evidence, though otherwise admissible, may be used in this criminal proceeding. Because use of the prior grand jury testimony is precluded as a matter of statute under the factual circumstances of this case, whether or not the People have established a basis for its admission under an exception to the hearsay rule is immaterial. Alternatively stated, unless it can be established that an exception to the statutory bar permits a witness’s grand jury testimony to be *23used against a criminal defendant, this Court need not reach the issue of whether the elements of a particular exception to the rule against hearsay have been demonstrated. Facts
Defendant Peter DiTomasso was charged with two counts of perjury in the first degree based on his testimony before the grand jury that he or the two corporate entities jointly owned by him and his brother, Frank DiTommaso, did not pay for renovation work to an apartment owned by former New York City Police Commissioner Bernard Kerik.
In 1997, the DiTommaso brothers filed applications on behalf of their two construction companies to do business in Atlantic City, New Jersey. They were introduced to Kerik to assist in expediting the investigation of their applications before the New Jersey Division of Gaming Enforcement. The People’s theory is that the brothers assisted Kerik with the renovation of his new apartment, including financing, while Kerik attempted to use his position and influence to assist them in the approval of the various investigations in conjunction with the Atlantic City permits.
The DiTommasos engaged Timothy Woods of Woods Restoration as the general contractor for the Kerik renovation. Woods had a very close personal relationship with defendant. The Kerik job was completed in or about March 2000. Kerik, who had purchased his apartment in 1999 for $170,000, sold it in 2003, after extensive renovations, for $460,000.
In December 2004, President Bush announced that Kerik was his choice for the position of Secretary of Homeland Security. Thereafter, newspaper articles appeared containing allegations about Kerik and the renovations to his apartment. An investigation led to a grand jury presentation as to whether Kerik should be charged with receiving bribes, and related crimes, for accepting the renovations to his apartment from the DiTommasos. Defendant testified before the grand jury and denied that he or his two construction companies ever made payments for the Kerik renovations.
However, Woods testified before the grand jury that when he presented a bill for certain renovation work to defendant, after Kerik had failed to pay, defendant told him to increase his billing on other jobs that Woods supervised for defendant’s construction companies, unrelated to the Kerik project — in effect, billing the other projects for the Kerik job. Woods wrote invoices for the jobs that defendant told him to bill, including *24the St. Vincent’s Nursing Home project, which Woods had not in fact worked on. Witnesses who were familiar with the St. Vincent’s project confirmed that Woods Restoration had never worked on that project. The DiTomasso brothers, through their construction companies, paid over $255,000 for the Kerik restoration. A substantial amount of this money was paid to Woods for his renovation services.
Proceedings
At defendant’s trial for perjury, the People called Timothy Woods as their witness. However, Woods professed an inability to recall events to which he had previously testified, in considerable detail, before the grand jury. When the People sought to introduce that testimony, defendant objected on the ground that his right to confront the witness was being infringed (citing Crawford v Washington, 541 US 36 [2004] [barring, inter alia, the introduction of prior testimony taken without opportunity for cross-examination]). Defendant argued that the People were attempting to introduce contradictory hearsay evidence to impeach their own witness, testimony which “does not constitute evidence in chief” (CPL 60.35 [2]). While the People argued that supplementing a witness’s recollection does not amount to impeachment, the court disagreed.1
The People then moved, successfully, to have the witness’s grand jury testimony admitted as past recollection recorded. Counsel again objected, noting that the right of confrontation was implicated and the matter was governed by specific rules. The court opined that the Confrontation Clause “ ‘does not bar admission of a statement so long as the declarant is present at trial to defend or explain it’ ” (quoting Crawford, 541 US at 59 n 9). Without attempting to reconcile this pronouncement with state law, specifically the previous ruling under CPL 60.35, the court granted the People’s application, at which time counsel reiterated that the court had erred in failing to treat the issue as one arising under the Confrontation Clause.
Analysis
The appellate briefs concentrate on the propriety of the trial court’s resort to the past recollection recorded exception to the *25hearsay rule as a basis for the admission of Woods’s grand jury testimony. Defendant’s discussion of the statutory grounds for receipt of prior testimony is confined to a passing reference to CPL 60.35 and the Legislature’s hostility to the admission of the grand jury testimony of a forgetful witness. In a footnote, defendant asserts that admission of Woods’s testimony is not authorized by any other hearsay exception, including “the exception for former testimony” under CPL 670.10 (citing People v Green, 78 NY2d 1029 [1991]). The People’s brief is devoid of any discussion of the pertinent statutes.
It should be noted that defendant’s allusion to legislative hostility to the use of grand jury testimony in criminal proceedings is accurate. Procedural rules prevent its admission into evidence where, as here, the witness is available for cross-examination (CPL 60.35) and, contrariwise, where the witness is not available for examination (CPL 670.10), reflecting a policy best regarded as encompassing. CPL 670.10 (“Use in a criminal proceeding of testimony given in a previous proceeding; when authorized”) allows for the receipt of “testimony given by a witness at (a) a trial of an accusatory instrument, or (b) a hearing upon a felony complaint conducted pursuant to section 180.60, or (c) an examination of such witness conditionally” under article 660, where the witness is unavailable due to “death, illness or incapacity, or cannot with due diligence be found, or is outside the state or in federal custody and cannot with due diligence be brought before the court.” (CPL 670.10 [1].) However, the Court of Appeals has construed the provision to be the legislative expression of the exclusive classes of prior testimony that can be admitted in a criminal action as evidence-in-chief. “Largely a codification of common law” (People v Arroyo, 54 NY2d 567, 569 [1982], cert denied 456 US 979 [1982]), the statute is an “exception to the Sixth Amendment right of confrontation” (People v Diaz, 97 NY2d 109, 114 [2001]), providing “three carefully worded and enumerated exceptions” for prior testimony (People v Harding, 37 NY2d 130, 134 [1975]).
It is clear from case law that prior testimony is generally inadmissible as hearsay unless it satisfies the requirements of CPL 670.10 (People v Ayala, 75 NY2d 422, 428 [1990]) and that the three categories of prior proceedings, designated therein, that may be received into evidence are exclusive (id. at 429, citing Harding, 37 NY2d at 133-134; People v Gonzalez, 54 NY2d 729 [1981]). In Ayala, the People introduced a redacted *26version of testimony given at a Wade hearing by an eyewitness who had since become unavailable. The Court of Appeals concluded that CPL 670.10 should be strictly construed and confined to “the three categories of prior proceedings delineated in the statute, i.e., felony hearings, article 660 conditional examinations and trials of accusatory instruments” (75 NY2d at 428). The opinion goes on to note that, unlike the felony hearing, the conditions necessary to promote vigorous cross-examination do not exist at a Wade hearing, which might not adequately explore — or even reach — substantive trial issues. And because no jury is present and the defendant’s guilt is not being assessed, counsel might pursue strategies prejudicial to his or her client’s interests, fail to interpose objections to testimony by the People’s witnesses or delve into facts tending to implicate the client in the crime (id. at 429-430). The decision further emphasizes that the opportunity for adequate cross-examination at the prior proceeding is “an additional, constitutional requirement for the admissibility of prior testimony that otherwise satisfies CPL 670.10; it is not a substitute for the satisfaction of the clear statutory terms” (id. at 430).
It is abundantly plain that “Grand Jury proceedings are not encompassed within the statute” (People v Robinson, 89 NY2d 648, 652 [1997]) for similar reasons. As stated in People v Geraci (85 NY2d 359, 368 [1995]):
“[H]earsay evidence such as the Grand Jury testimony at issue here is especially troubling because ‘although given under oath, [it] is not subjected to the vigorous truth testing of cross-examination’ [quoting, inter alia, United States v Thevis (665 F2d 616, 629 [5th Cir 1982], cert denied 456 US 1008 [1982], 458 US 1109 [1982], 459 US 825 [1982])]. Furthermore, Grand Jury testimony is often obtained through grants of immunity, leading questions and reduced attention to the rules of evidence — conditions which tend to impair its reliability.”
It is settled that grand jury testimony may not be used under the circumstances presented by the instant matter. People v Green (78 NY2d 1029 [1991]) cited by defendant (albeit in a footnote), is directly on point. There, a nine-year-old boy who had witnessed a murder identified the defendant from a lineup as a participant in the crime. By the time of trial, however, the witness professed a complete loss of memory regarding the *27events and, over objection, the court received his grand jury testimony into evidence. This Court affirmed the conviction (159 AD2d 432 [1990]), reasoning that the right of confrontation is not denied if the witness whose prior testimony is admitted is available for cross-examination at trial — precisely the rationale embraced by the majority and the trial court herein.
In a succinct reversal, the Court of Appeals remanded the matter for a new trial, stating:
“The Grand Jury testimony of an eyewitness to the crime, which identified defendant as one of the perpetrators, did not fall within the classes of prior testimony rendered admissible in criminal proceedings by CPL 670.10. Inasmuch as the statute’s ‘three carefully worded and enumerated exceptions’ are exclusive (People v Harding, 37 NY2d 130, 134; see, People v Ayala, 75 NY2d 422, 429), the trial court erred in allowing the witness’ prior testimony to be admitted as evidence-in-chief against the defendant. Under the circumstances of this case, in which identification was the central issue, we cannot conclude that the error was harmless” (Green, 78 NY2d at 1030).
The statute expressly addresses the use of prior testimony “otherwise admissible” (CPL 670.10 [1]), and since prior testimony usable as evidence-in-chief under the statute does not include grand jury testimony (CPL 670.10 [2]), the availability of a hearsay exception rendering it “otherwise admissible” does not overcome the statutory exclusion. Further, while the witness was available for cross-examination at trial, which is acceptable under federal law (Crawford, 541 US at 59 n 9), it contravenes state law requiring an opportunity for cross-examination during the prior proceeding (Ayala, 75 NY2d at 430 [construing the opportunity for cross-examination as “an additional, constitutional requirement” for the receipt of testimony otherwise satisfying CPL 670.10]). As Woods’s grand jury testimony was the only evidence against defendant, the error was not harmless. Thus, the matter is indistinguishable from Green.
While acknowledging that CPL 670.10 is an “exception to a defendant’s right of confrontation” and stating that it does not bar the use of Woods’s grand jury testimony as evidence-in-chief, the majority resorts to federal case law to conclude that “CPL 670.10 is inapplicable.” It further opines that this Court *28should not consider CPL 670.10 in deciding this appeal because defendant made no mention of the statute in asserting his objection to the admission of Woods’s prior testimony at trial.
Since defendant based his objection to the evidence on the abridgment of his right of confrontation and because that right is governed by statute in this state, it would seem that we have not only the latitude but the duty to take judicial notice “without request” of provisions pertaining to matters necessary to the disposition of an appeal (CPLR 4511 [a]). Furthermore, the existence of a state statute renders federal case law inapposite to the extent that the state-law provision extends greater protection to a defendant’s right to confront witnesses against him than the Sixth Amendment, as construed by the United States Supreme Court. State law mandates that the right to confront the witness be available at the time testimony is taken so as to ensure its reliability (see Geraci, 85 NY2d at 368). This state right of confrontation is not diminished by federal case law deeming the availability of the witness for cross-examination at the time the testimony is introduced at trial to be sufficient to protect the defendant’s confrontation right as a matter of federal constitutional interpretation (e.g. Crawford, 541 US at 68). Moreover, defendant’s right of confrontation could not be protected even with the availability of Woods for cross-examination, because by the time of trial he no longer recalled, with specificity, the events in issue.
The majority’s analysis proceeds on the tenuous proposition that CPL 670.10 “does not bar the admission of prior testimony which is otherwise independently admissible under a recognized exception to the hearsay rule” (quoting People v Rose, 224 AD2d 643, 643 [2d Dept 1996]). This sweeping declaration is predicated on a line of cases holding that grand jury testimony may be introduced against a defendant where the testimony constitutes a declaration against penal interest (People v Rodriguez, 191 AD2d 597, 598 [2d Dept 1993], lv denied 82 NY2d 725 [1993]; People v Koestler, 176 AD2d 1207, 1208 [4th Dept 1991]; see also People v Rodriguez, 73 AD3d 815, 816 [2d Dept 2010] [dictum]; cf. People v Gardner, 237 AD2d 895 [4th Dept 1997], lv denied 90 NY2d 893 [1997] [testimony from prior trial]). The Second Department cited, in support of its pronouncement, People v Morgan (151 AD2d 221, 224 [4th Dept 1989], affd 76 NY2d 493 [1990]). However, in affirming Morgan, the Court of Appeals restricted its analysis to the question of whether the testimonial statement admitted *29truly qualified as an admission against penal interest, agreeing that it did not. Significantly, the Court went on to state, “We do not decide the question whether Grand Jury testimony can qualify for this hearsay exception” (id. at 499). Thus, the Court of Appeals has not recognized even the declaration against penal interest exception to the hearsay rule, much less each and every other such exception, as a permissible basis for the receipt of a witness’s grand jury testimony as evidence-in-chief.
As to preservation of the issue upon review, it is acknowledged that defendant cites Green in his brief for the proposition that “the exception for former testimony” under CPL 670.10 does not authorize the receipt of Woods’s prior grand jury testimony. The majority finds Green to be distinguishable on the ground that Woods did not sustain a total memory loss and was available to testify at trial; thus, he was not “unavailable” as provided under the statute, which the majority concludes is therefore inapplicable.
Significantly, the Court of Appeals did not consider the availability of the child witness in Green to preclude applying the statute to dispose of the appeal. That the Court of Appeals did not arrive at its decision by simply finding the statute to be facially inapplicable, as the majority proposes, merely illustrates that CPL 670.10 is considered to be a reflection of state policy on the use of prior testimony in criminal proceedings. Indeed, this Court’s own jurisprudence supports the application of Green to factually identical circumstances in which the witness, likewise available for examination at trial, portrayed an inability, if not outright refusal, to testify (People v Concepcion, 228 AD2d 204, 205 [1st Dept 1996] [construing the attempt to equate the inability to testify with unavailability under the statute as “a rather dubious proposition”]). As we stated in Concepcion, “[T]he only recognized exception to the common-law rule barring the admission of prior Grand Jury testimony in a criminal prosecution [is] where the defendant’s own misconduct has procured the witness’s unavailability at trial” (id.). We found that the stated exception was inapplicable and that the introduction of the “Grand Jury testimony on the People’s direct case, which raised hearsay and Confrontation Clause issues, was in clear violation of the limited statutory authorization for the use of prior testimony” (id.). Thus, I conclude that I am breaking no new ground by invoking CPL 670.10 and Green to resolve this appeal, in which a Confrontation Clause issue is clearly presented.
*30While unnecessary to the disposition of this appeal, it should be noted that the function of the past recollection recorded doctrine is not as extensive as the People presume. Even when properly admitted, a memorandum received as past recollection recorded “is not independent evidence” but merely “supplementary to the testimony of the witness,” at trial, who caused the memorandum to be recorded, and the testimony and the memorandum’s contents “are to be taken together and treated in combination as if the witness had testified to the contents of the writing based on present knowledge” (People v Taylor, 80 NY2d 1, 9 [1992]). In the matter before us, Woods failed to provide the requisite supporting trial testimony, and his grand jury testimony cannot stand on its own, even if it could be received into evidence.
The cases cited by the majority in support of the conclusion that, assuming a proper foundation, “grand jury testimony may be admitted as past recollection recorded,” cannot be reconciled with Green and Concepcion, nor with the strict construction afforded to CPL 670.10 as reflected in Robinson, Ayala, Gonzalez and Harding, all of which declined to extend the statute to embrace testimony taken in the course of proceedings not specified in the statute. For instance, in People v Linton (21 AD3d 909, 909-910 [2d Dept 2005], lv denied 5 NY3d 854 [2005]), which was also relied upon by the trial court, a “shooting was witnessed by several individuals who testified at trial.” There, “[t]he record did not establish that the complainant refused to testify, but rather, at the time of the trial, he no longer remembered the details of the shooting,” and his grand jury testimony was received “to supplement his in-court testimony” (id. at 910). Significantly, the Linton decision does not mention CPL 670.10; nor does it cite any authority that would support the admission of grand jury testimony under a common-law exception to the hearsay rule. In the alternative, the Second Department held that any error “was harmless beyond a reasonable doubt” in view of “the uncontradicted testimony of the two eyewitnesses” (id.). In People v Holmes (291 AD2d 247, 248 [2002], lv denied 98 NY2d 676 [2002]), this Court likewise endorsed the receipt of grand jury testimony as past recollection recorded.2 We similarly found, in the alternative, that “this evidence could not have caused defendant any prejudice because it was entirely cumulative to *31the testimony of other witnesses” (id. at 248). The conclusion reached in these cases in regard to admissibility fails to distinguish between the non-testimonial nature of the evidence admitted in such cases as People v Taylor (80 NY2d 1 [1992], supra [telephone message taken by a detective]), cited in Linton, and People v Lewis (232 AD2d 239 [1st Dept 1996], lv denied 89 NY2d 865 [1996] [undercover police officer’s buy report]), cited in Holmes, and the testimonial evidence before the Appellate Division in each matter (see also People v Turner, 210 AD2d 445 [2d Dept 1994], lv denied 85 NY2d 915 [1995], citing Taylor).
With respect to past recollection recorded generally, the Court of Appeals has made plain that the rationale underpinning the doctrine is that the recorded information is essential and that “when the conditions for admission have been met, there is sufficient assurance of the accuracy of the recordation and its trustworthiness” (Taylor, 80 NY2d at 8-9). It is apparent that the testimony improperly received by the trial court fails to meet the requirement of trustworthiness and should not have been admitted. As reflected by both governing statutory and case law, grand jury testimony is regarded as inherently unreliable — precisely due to the lack of opportunity to confront the witness (Geraci, 85 NY2d at 368). Thus, it is unnecessary to reach the issue of whether Woods’s recollection of events possesses the requisite assurance of reliability. Although the passage of time between an event and its recordation is certainly one factor bearing upon reliability, memory is highly idiosyncratic. While some people cannot remember what they ate for breakfast, others can recall what they had for a given meal on a given date a decade in the past, along with who was present, what was discussed and what transpired before and afterwards (an ability clinically known as hyperthymesia or highly superior autobiographical memory). Reliability should be the touchstone of a court’s evaluation of trustworthiness predicated on such factors as the witness’s ability to recall events, the notoriety of the events at issue and their significance to the witness. Here, given Kerik’s well known status, his constant visibility in the media throughout the years from when the renovation work began up to the time of Woods’s grand jury testimony and the publicity storm generated when Kerik’s apartment renovations came to light, the events of the Kerik renovations should have been fairly fresh in Woods’s mind during his grand jury testimony, even though the work *32was performed six years earlier. The factual circumstances tend to support the finding of the trial court that Woods was feigning an inability to recall the events in issue. Thus, I do not favor the imposition of an arbitrary limit on the time at which the memorandum is recorded, as alluded to by the majority, but rather consideration of all of the relevant circumstances in the assessment of its reliability.
Friedman and Saxe, JJ., concur with Andrias, J.; Tom, J.P., concurs in a separate opinion.Judgment, Supreme Court, Bronx County (John W. Carter, J.), rendered April 2, 2013, reversed, on the law, and the matter remanded for a new trial.
. While the propriety of this ruling is not before us, it has been observed that even accepting the People’s position that their witness is not being impeached, the evidence is excludable under the rule precluding the use of prior testimony “in a manner that discloses its contents to the trier of the facts” (People v Rudd, 125 AD2d 422, 425 [2d Dept 1986], quoting CPL 60.35 [3]).
. The decision does not disclose the circumstances under which the prior testimony was admitted.