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IT WAS REVERSIBLE ERROR TO ADMIT A WITNESS’S GRAND JURY TESTIMONY, THE WITNESS’S CLAIM HE COULD NOT REMEMBER THE EVENTS WAS NOT SO DAMAGING TO THE PEOPLE’S CASE AS TO ALLOW THE GRAND JURY EVIDENCE FOR IMPEACHMENT PURPOSES (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined that admitting the grand jury testimony of a witness was reversible error. The witness’s testimony at trial that he couldn’t remember the events was not so damaging to the People’s case as to justify impeachment:

The People concede that the trial court erred in admitting the grand jury testimony of a witness indicating that defendant fired an errant shot that struck a bystander as defendant and a companion fled from another group following a verbal altercation. Specifically, the People acknowledge that the testimony was not admissible under the past recollection recorded exception to the hearsay rule, because the witness did not testify at trial that the grand jury testimony “correctly represented his knowledge and recollection when made” … , and was not admissible for impeachment purposes under CPL 60.35 because the witness’s trial testimony that he could not remember the relevant events did not “affirmatively damage[] the case of the party calling him” … . People v Folk, 2019 NY Slip Op 04321, First Dept 6-4-19

 

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