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THE PEOPLE, ETC., RESPONDENT, v. TIKAPERSAUD RAMASHWAR, APPELLANT.

DECISION ORDER

ORDERED that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered.

We agree with the defendant's claim that the prosecutor injected the issue of her own credibility into the trial when she questioned two defense witnesses regarding their prior statements to her in a telephone interview. When the witnesses either sought to explain the statements or could not recall making the statements, the prosecutor then sought to impeach the witnesses with their alleged prior responses. In doing so, the prosecutor's credibility became an issue at trial and deprived the defendant of a fair trial (see People v. Bailey, 58 N.Y.2d 272, 277; People v. Paperno, 54 N.Y.2d 294, 300-301; cf. People v. King, 175 A.D.2d 266). Moreover, it was improper for the prosecutor to comment upon those inconsistencies in summation (cf. People v. Galloway, 54 N.Y.2d 396), thus putting the prosecutor's credibility in issue for the jury's consideration and evaluation.

In light of this determination, we need not reach the defendant's remaining contentions.

SMITH, J.P., McGINITY, LUCIANO and CRANE, JJ., concur.

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PEOPLE v. RAMASHWAR
(Nov 18, 2002)