Murder Conviction Reversed & New Trial Ordered Due to Prosecution’s Impermissible Use of Prior Statement
During this murder trial, the prosecution impeached one of her own witnesses with a prior statement. Although Criminal Procedure Law § 60.35 permits such impeachment in certain circumstances, it is not allowed for the purpose of refreshing recollection if the witness’s testimony did not affirmatively damage or tend to disprove the position of the party who called the witness. Here, the witness’s testimony that he did not see the perpetrator’s face and did not see Mr. Sams fire a gun did not contradict or disprove any testimony or factual evidence presented by the prosecution. Accordingly, it was error for the prosecutor to use the witness’s prior statement for impeachment purposes. Because the evidence was not overwhelming, the error was not harmless. The conviction was reversed and a new trial was ordered.
Brian Perbix represented Mr. Sams