People v. Riggins

—Judgment unanimously affirmed. Memorandum: County Court erred in permitting the prosecutor to impeach one of his witnesses with testimony she had given at a prior trial. CPL 60.35 (1) permits the impeachment of a witness "only when the testimony of the witness in court affirmatively damages the case of the party calling him” (People v Fitzpatrick, 40 NY2d 44, 51 [emphasis in original]; see also, People v Saez, 69 NY2d 802, 804; People v Clark, 195 AD2d 988, 989). The People’s witness testified that she could not recall two specific events. A witness’s failure to recall an event, whether…