New trial ordered in murder case after prosecutor impeached his own witness

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A state appeals court has reversed a murder conviction and ordered a new trial because the prosecutor impeached the credibility of his own witness.

Defendant Carlos Sams was convicted in March 2013 of second-degree murder and second-degree criminal possession of a weapon in state Supreme Court in Brooklyn before state Supreme Court Justice Neil Jon Firetog.

In a decision released Wednesday, the Appellate Division of state Supreme Court, Second Department, rejected the defense claim that the evidence was legally insufficient to support the convictions.

“Viewing the evidence in the light most favorable to the prosecution, we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt,” the court wrote.

But the court ordered a new trial because Firetog allowed the prosecutor to impeach one of her own witnesses with a prior statement in violation of state Criminal Procedure Law CPL 60.35.

According to the statute, when a witness gives testimony on a material issue that is contrary to a previous statement, the attorney can introduce evidence of the previous statement.

But the prior statement cannot be used to refresh the recollection of the witness in a way that would disclose the contents of the previous statement to the jury if the testimony of the witness does not disprove the position of the attorney who called the witness and elicited the testimony.

An attorney can impeach their own witness only if the testimony on a material fact disproves the attorney’s position or damages their case.

“Trial testimony that the witness has no knowledge of or cannot recall a particular event, whether truthful or not, does not affirmatively damage the People’s case,” the court wrote.

In the Sams case, the witness testified that he did not see the perpetrator’s face and did not see the defendant fire a gun, which failed to corroborate or bolster the prosecutor’s case, “but it did not contradict or disprove any testimony or other factual evidence presented by the prosecution,” according to the decision.

“Accordingly, the prosecutor’s use of the witness’s prior statement for impeachment purposes was impermissible,” the court wrote.

“The error cannot be deemed harmless since the evidence of the defendant’s guilt, without reference to the error, was not overwhelming, and it cannot be said that there is no significant probability that the jury would have acquitted the defendant had it not been for the error. Accordingly, the judgment must be reversed, and a new trial ordered,” the court ruled.

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