OPINION OF THE COURT
Andrias, J.
Defendant was convicted, after a jury trial, of two counts of perjury in the first degree. The only arguments he raises on appeal are that the trial court erred when it allowed the People to admit certain grand jury testimony on their direct case under the past recollection recorded exception to the hearsay rule, and when it excluded, on relevancy grounds, a document critical to his perjury trap defense. For the reasons that follow, we find that the grand jury testimony should not have been admitted into evidence because the People failed to establish that the witness’s recollection of the matter was fairly fresh when recorded or adopted during the grand jury proceeding, and the witness could not attest at trial that the testimony was accurate when given.
The indictment alleges that on June 15, 2006 and March 30, 2006, respectively, defendant Peter DiTommaso and his brother, codefendant Frank DiTommaso, committed perjury when they testified before a grand jury investigating Bernard Kerik.1 The investigation stemmed from allegations that in 1999 and 2000, Kerik, then Commissioner of the New York City Department of [13]*13Corrections, accepted renovations to his apartment that were paid for by companies owned by the DiTommasos (the Interstate companies or Interstate). In return, Kerik allegedly vouched for the DiTommasos’ integrity in investigations by public agencies in connection with applications by the Interstate companies for permits needed to obtain government contracts.2
Another witness who testified before the grand jury was Tim Woods, whose company, Woods Restoration, allegedly received payments from Interstate for renovations it performed on Kerik’s apartment that were hidden by having Woods bill the work to other projects. The indictment alleges that when defendant was recalled to the grand jury on June 15, 2006 to clarify certain aspects of his March 28, 2006 testimony, he committed perjury when he testified that Woods Restoration worked on a project for St. Vincent’s nursing home and that Interstate did not pay Woods Restoration for renovations to Kerik’s apartment.
At the trial of the DiTommasos, when the prosecutor asked if defendant referred the Kerik job to him, Woods replied, “As far as I can remember.” However, he qualified this by stating that “we’ve [he and the prosecutor] gone over this so many times I can’t remember if this is what we discussed or what happened [,]” and that he was “kind of mixed up whether or not it’s [an] independent recollection or it’s you and I having gone over it so many times.” When Woods persisted in his claim that he did not know whether his recollection had been reinforced or created by his discussions with the prosecutor over the past six years, the prosecutor, believing that Woods was feigning an inability to remember, sought to impeach Woods with his 2006 grand jury testimony. The court ruled that the use of the grand jury testimony for impeachment based on his purported failure to remember was “inappropriate,” but suggested that “there may be other avenues” for its admission.
Upon continued direct examination, Woods stated that based on his discussions with the prosecutor, it looked like Interstate paid Woods Restoration for the Kerik job, but that he had no independent recollection of that or of “a discussion with [de[14]*14fendant] about Bernard Kerik.” The prosecutor then offered Woods’s grand jury testimony under the past recollection recorded exception to the hearsay rule. Defense counsel objected, and the court conducted a hearing outside the jury’s presence to determine whether the foundational requirements for the past recollection recorded exception were satisfied.
At the hearing, Woods testified on direct examination by the prosecutor that he honestly was not sure about where his recollection of the Kerik job came from. While Woods repeatedly stated that he believed that he had testified truthfully and accurately before the grand jury, he also stated that “[a]s I sit here right now, I can’t tell you if everything that’s in that Grand Jury that I said was — is accurate, [or if] it’s the result of, you know, prep sessions that we had.” Woods explained:
“What you just asked me whether or not it was truthful in the Grand Jury, I can’t tell you right now, I’m so confused with the facts and what happened, and where these things happened, and the millions of prep sessions that what’s in the those Grand Jury [sic], whether or not that was exactly what happened, that was a result of, you know, these prep sessions. ¶ I[,] I’m just not clear. I try my best to be truthful at all times, which is why I’m telling you, and I’ve been telling you that I don’t have a close recollection of this whole thing. ¶ I know more about the events from our prep sessions than I actually can remember.”
On cross-examination, Woods testified that he believed that he did not have a present recollection of the events during the prep sessions or when he appeared before the grand jury, and reiterated that he could not tell whether his grand jury testimony was based on his own recollection or the cumulative effect of all of the interviews and testimony he had previously given.
The trial court found that it was “clear” that when Woods testified before the grand jury “the events were fresh in his mind.” The court noted that Woods had testified before the grand jury with specificity and “never stated in either the grand jury testimony or any other proceeding, deposition or interview that he was confused or that his memory was muddled in any way.” Furthermore, Woods testified at the hearing that he believed that his grand jury testimony was truthful and accurate and the testimony itself was corroborated by other evi[15]*15dence. Thus, finding that Woods “was being less than candid about his memory of the events in question,” the court permitted the People to introduce, under the past recollection recorded exception to the hearsay rule, Woods’s grand jury testimony stating that defendant had asked him to bill the Kerik work to other Interstate jobs, including the St. Vincent’s project, which Woods Restoration had in fact not worked on.
The court rejected defendant’s argument that the admission of Woods’s grand jury testimony would violate his Sixth Amendment right of confrontation under Crawford v Washington (541 US 36 [2004]). The court reasoned that
“although [the] Crawford decision limits the use of testimonial evidence, such as Grand Jury testimony, or where a witness is not subject to previous cross-examination, that is true only when the witness is physically unavailable at trial. Here, the confrontation clause is satisfied, as the defendants will be given the opportunity to examine and cross examine Woods, before the jury regarding his actions, what he did and did not recall, and the reasons for his failure of recollection. ¶ Thus, there is no confrontation clause violation in the admission of Woods’[s] Grand Jury testimony.”
Under the past recollection recorded exception to the hearsay rule, a memorandum of a fact known or an event observed in the past may be admitted if the witness is unable or unwilling to testify as to its contents, and otherwise competent evidence establishes that “the witness observed the matter recorded, the recollection was fairly fresh when recorded or adopted, the witness can presently testify that the record correctly represented his knowledge and recollection when made, and the witness lacks sufficient present recollection of the recorded information” (People v Taylor, 80 NY2d 1, 8 [1992]).
“The rationale for the doctrine is that the recorded information is essential to further the truth-seeking function of the trial proceeding 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). When a proper foundation is laid, grand jury testimony may be admitted as past recollection recorded (see People v Linton, 21 AD3d 909, 910 [2d Dept 2005], lv denied 5 NY3d 854 [2005]; People v Holmes, 291 AD2d 247, 248 [1st Dept 2002] [“court properly exercised its discretion in admitting a witness’s [16]*16grand jury testimony as past recollection recorded since the People laid a sufficient foundation for such evidence”], lv denied 98 NY2d 676 [2002]; People v Turner, 210 AD2d 445 [2d Dept 1994], lv denied 85 NY2d 915 [1995]).
We now hold that protection of the integrity of these fundamental principles requires that defendant’s conviction be reversed and a new trial ordered. Although there is no rigid rule as to how soon after the event the statement must have been made (see People v Caprio, 25 AD2d 145, 150 [2d Dept 1966], affd 18 NY2d 617 [1966]), here the assurance of the accuracy of the recordation and its trustworthiness are diminished by the six-year gap between the underlying events, which concluded in 2000, and Woods’s grand jury testimony in 2006 (see People v Eli, 250 AD2d 418, 419 [1st Dept 1998] [defendant had “failed to lay a proper foundation for admission of. . . Grand Jury testimony, taken months after the event, as past recollection recorded”], lv denied 92 NY2d 851 [1998]; see also People v Wilkinson, 120 AD3d 521, 522 [2d Dept 2014] [“In light of the one-year gap between the time the witness allegedly heard the defendant’s alleged inculpatory statements and the witness’s grand jury testimony, the People failed to establish that the witness’s recollection of the matter was ‘fairly fresh when recorded or adopted’ during the grand jury proceeding”]).
The People argue that Woods’s testimony is admissible despite the six-year gap because the trial court found that he was “feigning a lack of memory.” However, even if Woods’s lack of memory demonstrates that he was unable or unwilling to testify, it does not abrogate the People’s obligation to satisfy the foundational requirement that the recollection was fairly fresh when recorded or adopted.
Nor was Woods able to “presently testify that the record correctly represented his knowledge and recollection when made” (Taylor, 80 NY2d at 8; see also People v Fields, 89 AD3d 861 [2d Dept 2011], lv denied 18 NY3d 882 [2012]). Although Woods testified that he believed his grand jury testimony was truthful and accurate, he also testified that “[a]s I sit here right now, I can’t tell you if everything that’s in that Grand Jury that I said was . . . accurate”; that although he “wanted to be accurate” and “wouldn’t testify untruthfully,” he could not swear that “what’s in the . . . Grand Jury . . . was exactly what happened,” and that he could not “remember [if] . . . what I was talking to was my clear recollection or . . . was resulting from [17]*17[my prep sessions] with people.” Thus, Woods’s testimony reflects that although he would not have purposefully lied to the grand jury, he could not presently state that his testimony accurately reflected his own recollection of the events in question at the time that he testified before it (see People v Wilkinson, 120 AD3d at 522 [“Moreover, the witness’s trial testimony was equivocal as to whether her testimony in the grand jury correctly represented her knowledge and recollection when given”]).
In his concurring opinion, our colleague acknowledges that the issue of whether Woods’s grand jury testimony was properly received as evidence-in-chief under the past recollection recorded exception is the focus of the parties’ briefs. Nevertheless, he finds that the issue is immaterial because the use of such testimony “is precluded as a matter of statute under the factual circumstances of this case.” Particularly, our colleague asserts that “[procedural rules prevent [the] admission [of grand jury testimony] 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).” However, this statutory argument, which was not raised by defendant at trial or in his appellate brief, is not properly before this Court, and is in any event without merit under the circumstances of this case.
CPL 60.35 (1) states:
“When, upon examination by the party who called him, a witness in a criminal proceeding gives testimony upon a material issue of the case which tends to disprove the position of such party, such party may introduce evidence that such witness has previously made either a written statement signed by him or an oral statement under oath contradictory to such testimony.”
Pursuant to CPL 60.35 (2), such evidence “may be received only for the purpose of impeaching the credibility of the witness with respect to his testimony upon the subject, and does not constitute evidence in chief.”
Grand jury testimony may be introduced into evidence for impeachment purposes where the witness’s conflicting trial testimony on a material issue affirmatively damages the People’s case (see People v Harris, 112 AD3d 738 [2d Dept 2013], lv denied 23 NY3d 1020 [2014]; People v Faulkner, 220 AD2d 525 [2d Dept 1995], lv denied 87 NY2d 901 [1995]). [18]*18However, the mere lack of recollection of events in question will not trigger the right to impeach (see People v Ayala, 121 AD3d 1124, 1125 [2d Dept 2014] [“the testimony of the eyewitness that she did not remember the face of the shooter and could not identify the shooter because of the passage of time between the shooting and the trial, and because of her struggles with alcohol and depression, did not tend to disprove or affirmatively damage the People’s case”]).
At trial, the court denied the People’s request to introduce Woods’s grand jury testimony for impeachment purposes pursuant to CPL 60.35, holding that the statute is inapplicable because Woods said, “I don’t remember.” Defendant was not aggrieved by this ruling, which is not challenged by any party on appeal. Thus, as the concurrence concedes, the propriety of this ruling is not before us. Nor did defendant argue at trial or in his appellate brief that, where a witness is available, the admission of grand jury testimony as evidence-in-chief under the past recollection recorded exception to the hearsay rule is always barred by CPL 60.35 as a matter of law. Accordingly, this issue, raised only by the concurrence, also is not properly before us.
I find the concurrence’s focus on CPL 670.10 even more perplexing. CPL 670.10 creates an exception to a defendant’s right of confrontation under the Sixth Amendment to the Federal Constitution and article I, § 6 of the State Constitution. CPL 670.10 (1) states:
“Under circumstances prescribed in this article, 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, conducted pursuant to article six hundred sixty, may, where otherwise admissible, be received into evidence at a subsequent proceeding in or relating to the action involved when at the time of such subsequent proceeding the witness is unable to attend the same by reason of 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” (emphasis added).
Relying on People v Green (78 NY2d 1029 [1991]), which defendant cites in a footnote, the concurrence states that the [19]*19three categories listed in the statute are exclusive and that “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.” However, CPL 670.10 is inapplicable, because Woods was not “unable to attend the [trial] by reason of death, illness or incapacity,” and does not bar the admission of Woods’s grand jury testimony under the past recollection recorded exception to the hearsay rule under the circumstances before us.
In Crawford v Washington (541 US 36 [2004], supra), the United States Supreme Court held that it was a violation of an accused’s right to confront the witnesses against him, where testimonial evidence was admitted from a presently unavailable witness and there was no prior opportunity to cross-examine the witness. Grand jury testimony falls within the class of prior testimonial evidence that implicates the Confrontation Clause in the event the witness is not available for cross-examination at trial (id. at 68). However, “[w]hen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements . . . The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it” (id. at 59 n 9). Here, Woods appeared at trial. He did not invoke his Fifth Amendment rights or otherwise refuse to testify, and was available for cross-examination. Although Woods maintained that he did not know whether his recollection had been reinforced or created by his discussions with the prosecutor over the last six years, a witness’s inability to recall or remember does not deprive a defendant of the opportunity to cross-examine the witness (see People v Linton, 21 AD3d at 910).
In Linton, at the time of trial, the witness no longer remembered the details of the shooting. The appellate court held that “his grand jury testimony, which he described as accurate when given, was properly admitted as a past recollection recorded to supplement his in-court testimony, which was subject to cross-examination” (id.). The Court found that there was no violation of the Confrontation Clause because “the victim, whose prior grand jury testimony was read to the petit jury, testified at trial and was subject to cross-examination” (id.). Here, too, Woods was available for cross-examination. Unlike the nine-year-old witness in People v Green (78 NY2d [20]*201029 [1991], supra), he had not suffered a total memory loss since his grand jury appearance. Nor did he refuse to testify, as did the witness in People v Concepcion (228 AD2d 204 [1st Dept 1996]). Rather, Woods testified at considerable length, albeit not in the way that the prosecutor anticipated, persisting in his claim that he did not know whether his recollection had been reinforced or created by his discussions with the prosecutor over the past six years. Thus, whether Woods could not remember, or feigned an inability to remember, CPL 670.10 is inapplicable, and the People were well within their right to seek to introduce his grand jury testimony as a past recollection recorded exception to the hearsay rule.
Asserting that state law extends greater protection to a defendant’s right to confront a witness than the Sixth Amendment, the concurrence states that “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.” However, when defendant raised his Confrontation Clause argument at trial, he relied on Crawford, and did not contend that he had broader rights under the State Constitution. Therefore, Crawford properly serves as the basis for our decision under both the Federal and State Constitutions (see People v Bradley, 8 NY3d 124, 126 [2006]). Furthermore, in People v Concepcion, on which the concurrence so heavily relies, this Court stated that finding a witness to be unavailable due to “incapacity,” even where she refused to testify, is “a rather dubious proposition” (228 AD2d at 205).
Even if CPL 670.10 were theoretically applicable, the issue of whether the statute precludes the introduction of Woods’s grand jury testimony on the People’s direct case under the past recollection recorded exception to the hearsay rule was not raised at trial and is unpreserved for appellate review (see CPL 470.05; People v Rodriguez, 73 AD3d 815, 816 [2d Dept 2010], lv denied 15 NY3d 777 [2010]; People v Lluveres, 15 AD3d 848 [4th Dept 2005], lv denied 5 NY3d 807 [2005]). At trial, defendant’s only reference to CPL 670.10 was in the context of his argument that “[e]ven in circumstances where a witness is rendered unavailable due to the fault of the defense and Grand Jury testimony comes in, it doesn’t mean that everything comes in.” Defendant did not argue that the admission of grand jury testimony is precluded in its entirety by the statute as a matter of law because it does not fall within the three exclusive categories set forth therein.
[21]*21Nor should we review the issue in the interest of justice. In his brief, defendant argues that the grand jury testimony should not have been admitted because it “was given six years after the events at issue, and Woods could not attest at trial that the testimony was accurate when given.” In a footnote, he states that “[n]o other exception authorizes the admission of Woods’ grand jury testimony,” and cites People v Green for the proposition that “the exception for former testimony is inapplicable.” However, even if the footnote were construed as presenting the argument that grand jury testimony does not fall within the exceptions to the Confrontation Clause codified by CPL 670.10, defendant did not argue that CPL 670.10 precludes the introduction of grand jury testimony under the present recollection recorded exception to the hearsay rule in all cases as a matter of law. That argument was not raised by defendant at trial. Nor was it raised by defendant in his appellate brief.
The concurrence believes that we should nevertheless consider the issue “[s]ince defendant based his objection to the evidence on the abridgement of his right of confrontation and because that right is governed by statute in this state.” However, defendant does not contest the trial court’s finding that Woods’s purported inability to independently remember all of the specific facts related to the Kerik project did not render him unavailable to testify within the meaning of the Confrontation Clause, and he has abandoned any arguments relating thereto by failing to address them in his brief (see People v Price, 113 AD3d 883, 884 n 1 [3d Dept 2014]). In any event, it has been held that “[w]hile CPL 670.10 delineates specific instances where prior testimony may be used in a criminal proceeding, it does not bar the admission of prior testimony which is otherwise independently admissible under a recognized exception to the hearsay rule” (People v Rose, 224 AD2d 643, 643 [2d Dept 1996]; see also People v Rodriguez, 73 AD3d at 816; People v Gardner, 237 AD2d 895 [4th Dept 1997], lv denied 90 NY2d 893 [1997]; People v Turner, 210 AD2d at 445).
In sum, the concurrence seeks to decide this appeal not on the arguments made by the parties in their briefs, but on arguments it thinks should have been presented. However, the concurrence’s conclusion that prosecutors in this state are precluded in all instances by CPL 60.35 and 670.10 from using a witnesses’s grand jury testimony on their direct case, even though there is a long-standing common-law exception allowing its use (see People v Williams, 5 Misc 3d 1014[A], 2004 NY [22]*22Slip Op 51368[U] [Sup Ct, Bronx County 2004]), flies in the face of the well settled principle that we should not decide appeals on the basis of arguments that are not raised by the parties. The propriety of admitting Woods’s testimony under the past recollection recorded exception to the hearsay rule is the only appropriate subject of this appeal, which was thoroughly and ably argued by the parties.
In light of the foregoing, we decline to address defendant’s remaining argument, which challenges an evidentiary ruling that is not binding on the court upon a new trial (see People v Evans, 94 NY2d 499, 504 [2000]; People v Malizia, 62 NY2d 755, 758 [1984], cert denied 469 US 932 [1984]).
Accordingly, the judgment of the Supreme Court, Bronx County (John W. Carter, J.), rendered April 2, 2013, convicting defendant, after a jury trial, of two counts of perjury in the first degree, and sentencing him to a term of five years’ probation with 1,500 hours of community service and a fine of $10,000, should be reversed, on the law, and the matter remanded for a new trial.