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Sole Eyewitness’ Testimony at Trial Indicating She Could Not Identify the Shooter (Because of the Passage of Time and the Effects of Alcoholism and Depression) Did Not Allow the Prosecutor to Impeach Her with Her Grand Jury Testimony and Prior Identification of the Shooter

In reversing defendant’s conviction, the Second Department explained that the prosecution should not have been allowed to impeach its own witness when the witness failed to identify the shooter in her trial testimony.  In addition, it was error to allow a detective to testify that the witness previously identified the defendant:

…[T]he Supreme Court erred in permitting the prosecutor to impeach the sole eyewitness with her grand jury testimony and photo array identification of the shooter. A party may impeach its own witness with prior inconsistent statements only when the testimony of that witness on a material issue tends to disprove the party’s position or affirmatively damages the party’s case (see CPL 60.35…). “Trial testimony that the witness has no knowledge of or cannot recall a particular event, whether truthful or not, does not affirmatively damage the People’s case” … . Here, 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 … . Accordingly, it was error to permit the prosecutor to impeach the testimony of the eyewitness with her grand jury testimony and photo array identification. People v Ayala, 2014 NY Slip Op 07362, 2nd Dept 10-29-14

 

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