Prosecutor’s Creating the Impression Non-Testifying Witness Identified Defendant as Shooter Violated Defendant’s Right to Confront the Witnesses Against Him

The Second Department, over a dissent, determined that a new trial was required because the prosecutor created the impression a non-testifying witness [Drake] had identified the defendant as the shooter.  Although the error was not preserved by objection, the court addressed the issue in the interest of justice.  The court noted as well that the defense counsel’s objections to the prosecutor’s comments during summation (which reinforced the impression) were erroneously overruled:

Generally, during cross-examination, a party cannot introduce extrinsic evidence or call another witness to contradict a witness’s answers concerning collateral matters solely for the purpose of impeaching such witness’s credibility … . As the defendant correctly contends, during the cross-examination of Lloyd, the prosecutor improperly gave the impression that Drake, who did not testify, implicated the defendant while the police questioned her … . Notably, the prosecutor acknowledged at the second trial that Drake had testified at the initial trial, and that Drake had not identified the defendant as having been present at the party.

The defendant’s constitutional right to be confronted with the witnesses against him prohibits the “admission of testimonial statements of a witness who did not appear at trial unless he [or she] was unavailable to testify, and the defendant ha[s] had a prior opportunity for cross-examination” (Crawford v Washington, 541 US 36, 53-54; see People v Pealer, 20 NY3d 447, 453, cert denied _____US_____, 134 S Ct 105). Here, the defendant’s constitutional right to be confronted with the witnesses against him was violated.  People v Lloyd, 2014 NY Slip Op 01631, 2nd Dept 3-12-14