Impeaching Your Own Witness - the Good Faith Question

The Third Department reversed the defendant's conviction in People v. Mitchell (3d Dept. 12/31/2008) because the People improperly impeached their own witness.  The case involved a shooting and the issue at trial was the identity of the shooter.  The complainant identified the defendant, but his credibility was impeached by a prior inconsistent statement.  One of the other witnesses against the defendant was a guy named Snyder, who told the police that the defendant was the shooter.  At trial, he changed his mind.

While "[a] party may impeach its own witness if such witness' testimony on a material fact tends to disprove the party's position or affirmatively damages the party's case" (People v Saez, 69 NY2d 802, 804 [1987]; see CPL 60.35 [1]; People v Fitzpatrick, 40 NY2d 44, 51 [1976]; People v Bellamy, 26 AD3d 638, 640 [2006]), the use of the witness's prior statement in this manner must be made in good faith (see People v Russ, 79 NY2d 173, 178 [1992]). "The issue of good faith in the context of recanted . . . testimony depends on whether the prosecutor calls the witness solely or primarily in order to impeach the witness and thereby place otherwise inadmissible evidence before the jury" (People v Weiber, 202 AD2d 789, 790 [1994], lv denied 84 NY2d 834 [1994] [citations omitted]; see People v Russ, 79 NY2d at 178).

Here, Snyder provided a statement to police following the incident wherein he, among other things, identified defendant as the shooter. Prior to calling Snyder as a witness, the People notified County Court, out of the presence of the jury, that Snyder had specifically and unequivocally stated that he would recant his prior testimony if forced to take the stand (see People v Russ, 79 NY2d at 179; People v Fitzpatrick, 40 NY2d at 52-53). Nonetheless, the People were allowed to call Snyder as a witness and, significantly, made no attempt to elicit any testimony relevant to any material issue of the case other than the identity of the shooter (compare People v Weiber, 202 AD2d at 790-791). Rather, when Snyder denied that defendant was the shooter, he was immediately impeached by his prior contradictory statement, which was subsequently entered into evidence. As the record makes clear, the primary purpose served by calling Snyder as a witness was to place his otherwise inadmissible prior inconsistent statement before the jury. Moreover, the prosecutor was improperly permitted to roam through the prior statement in minute detail and rehash testimony that was not contradictory to Snyder's trial testimony and which, even more egregiously, bolstered crucial testimony of the People's witnesses (see People v Jones, 126 AD2d 974, 974 [1987], lvs denied 69 NY2d 1005 [1987], 70 NY2d 649 [1987]; People v De Jesus, 101 AD2d 111, 115 [1984], affd 64 NY2d 1126 [1985]).

Furthermore, notwithstanding County Court's limiting instruction (see CPL 60.35 [2]), we are of the view that the error was not harmless (see People v Russ, 79 NY2d at 177-179; People v Jones, 126 AD2d at 974-975). As previously demonstrated, the key issue in this case was the identity of the shooter, and the only evidence implicating defendant was the testimony of the victim. Notably, the prosecutor not only made direct reference to Snyder's statement during his summation, but read the pertinent portions line-by-line to the jury, thus compounding the error (see People v Lawrence, 227 AD2d 893, 894 [1996]; compare People v Andujar, 290 AD2d 654, 657 [2002], lv denied 98 NY2d 648 [2002]). Quite clearly, the quantum and nature of the proof in this case does not overwhelmingly evince defendant's guilt, and we simply cannot say that there is no reasonable possibility that the error might have contributed to defendant's conviction (see People v Fitzpatrick, 40 NY2d at 53; People v Bellamy, 26 AD3d at 641; see generally People v Crimmins, 36 NY2d 230, 237 [1975]).

The court's opinion was written by Justice Peters.  (LC).