HERE IT WAS REVERSIBLE ERROR TO PRECLUDE CROSS-EXAMINATION OF THE COMPLAINING WITNESS ABOUT HER DRUG USE AND PSYCHIATRIC CONDITION; NEW TRIAL ORDERED (SECOND DEPT). ​

The Second Department, reversing the conviction and ordering a new trial, determined the judge should not have precluded cross-examination of the complaining witness about drug use and psychiatric condition:

​In general, evidence of a witness’s substance abuse “is admissible to impeach [the] witness’ credibility if tending to show that [the witness] was under the influence of drugs while testifying, or at the time of the events to which [the witness] testified, or that [the witness’s] powers of perception or recollection, were actually impaired by the habit” … . Under the circumstances of this case, where the People disclosed that the complaining witness was in drug treatment at the time of her testimony and may have been using drugs when she first made allegations against the defendant, the County Court should not have precluded cross-examination as to the complaining witness’s drug use … .

Further, “[w]here a primary prosecution witness is shown to suffer from a psychiatric condition, the defense is entitled to show that the witness’s capacity to perceive and recall events was impaired by that condition” … . Here, the County Court should not have, in effect, granted the People’s application to preclude cross-examination of the complaining witness with respect to her mental health diagnosis, particularly since the People’s case primarily rested upon the complaining witness’s testimony … .People v Romero-Lopez, 2026 NY Slip Op 06331, Second Dept 10-28-26

​Practice Point: If there is evidence the complaining witness was using drugs at the time the allegations were made, it is reversible error to preclude cross-examination about drug use.

Practice Point: If the People disclose the complaining witness has a psychiatric condition, it is reversible error to preclude cross-examination about the condition.