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TESTIMONY OF SOLE EYEWITNESS DEEMED INCREDIBLE AND UNRELIABLE, CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (SECOND DEPT).

The Second Department, reversing defendant’s manslaughter conviction under a weight of the evidence analysis, determined that the testimony of the sole eyewitness, Geroulakis, was incredible and unreliable:

On cross-examination, Geroulakis’s testimony was incredible and unreliable. Geroulakis denied that, at the first trial, he had identified the defendant as the shorter man at the souvlaki stand. When Geroulakis was confronted with his testimony from the first trial, he responded, “I remember they told me who is who, who stabbed me and who stabbed Jimmy.” Significantly, investigating detective Robert W. Henning testified that Geroulakis told him that he had argued with the shorter man, that they pushed and shoved each other, that the man “pulled out a knife” and stabbed Geroulakis “in the right thigh area” and then walked over to the car, reached in, and “stabbed [Zisimopoulos] in the abdomen.” After reading his interview notes, Henning confirmed that Geroulakis stated that the same person stabbed both Geroulakis and Zisimopoulos. Furthermore, on cross-examination, Geroulakis testified that he did not remember what the man whom he identified as the defendant was wearing and denied previously describing the man as wearing a long-sleeved black shirt. Geroulakis recalled telling a detective only that “some were wearing black and one was wearing long sleeves.” Geroulakis acknowledged that, in 2009, he had testified that the taller man wore a black shirt with long sleeves. A video-still from one of the clubs that the defendant visited in the early morning of the day of the incident revealed that the defendant was wearing a light-colored shirt with horizontal stripes and sleeves to the elbows. In addition, Detective Constantine Papadopoulos testified that the defendant had the same tattoo on his right arm at the time of trial that he had at the lineup, and Detective David Beutel testified that the defendant had tattoos on both of his arms. Geroulakis, however, testified that the arms of the two men who allegedly stabbed Zisimopoulos were bare and that he did not observe any tattoos.

Moreover, Geroulakis’s motive to identify the defendant as one of the people who stabbed Zisimopoulos is apparent from his exaggerated testimony at the second trial. It was only at second trial, nine years after the incident, that Geroulakis testified that he had observed the defendant, the taller of the two men, twice: once at the souvlaki stand and once by the car at the time of the stabbings. On cross-examination, however, Geroulakis admitted that, at the first trial, he stated that he recognized only the shorter man from the souvlaki stand, not the defendant. Despite this admission, Geroulakis continued to insist at the second trial that both the defendant and the shorter man were at the souvlaki stand.

Based on the weight of the credible evidence, we find that the jury was not justified in finding the defendant guilty of manslaughter in the first degree beyond a reasonable doubt … . People v Andujar, 2018 NY Slip Op 08028, Second Dept 11-21-18

CRIMINAL LAW (TESTIMONY OF SOLE EYEWITNESS DEEMED INCREDIBLE AND UNRELIABLE, CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, APPEALS, TESTIMONY OF SOLE EYEWITNESS DEEMED INCREDIBLE AND UNRELIABLE, CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (SECOND DEPT))/APPEALS (CRIMINAL LAW, TESTIMONY OF SOLE EYEWITNESS DEEMED INCREDIBLE AND UNRELIABLE, CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (SECOND DEPT))/WEIGHT OF THE EVIDENCE (APPEALS, CRIMINAL LAW, TESTIMONY OF SOLE EYEWITNESS DEEMED INCREDIBLE AND UNRELIABLE, CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (SECOND DEPT))

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