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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 26
The People &c.,
            Respondent,
        v.
Oliver Berry,
Also Known as Chris Tucker,
            Appellant.




          Erica Horwitz, for appellant.
          Rona I. Kugler, for respondent.




PIGOTT, J.:
          A near collision on July 16, 2002 at the intersection
of Foch Boulevard and Guy R. Brewer Boulevard in Queens, New
York, led to a heated argument between defendant and Korin Bush,
a passenger in a vehicle being driven by Josiah Salley.   The

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confrontation lasted for a considerable period of time -- five to
ten minutes by some estimates -- before the participants parted
and Salley and Bush drove away.
             Approximately 90 minutes later, Salley and Bush
approached the same intersection from the opposite direction.
Bush saw defendant and another man standing by a fence.    Bush
would later testify that, as the light changed, defendant ran
toward their vehicle and fired several shots, shattering the
windows and striking Salley.    Bullets also pierced the passenger
side door.    Defendant then ran away, past a playground and into a
nearby housing development.    Salley died from gunshot wounds.
             Detectives, who were nearby working on an unrelated
case, heard the gunshots and saw two individuals running from the
scene.   Although defendant eluded capture, a detective
apprehended the other person -- later identified as Kevin Kirven
-- and returned him to the scene of the shooting. Bush identified
Kirven as the man that had been standing with defendant at the
fence before the shooting, but told police Kirven was not the
shooter.   Kirven was taken to the police precinct, where he gave
a signed statement to detectives and was released.    Defendant
evaded capture for nearly two years.     He was finally apprehended
on May 5, 2004.    At a six-person lineup conducted that afternoon,
Bush identified defendant as the shooter.
             Defendant was then charged with murder in the second
degree, attempted murder in the second degree, and criminal


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possession of a weapon in the second and third degrees.   At the
subsequent trial, defendant was found guilty as charged; however,
the Appellate Division reversed the judgment and ordered a new
trial (49 AD3d 888, 889 [2d Dept 2008] [citations omitted]).
          At the second trial, Kirven, who had been unavailable
at the first trial, was called by the People.    His testimony is
the focus of a number of rulings that form the basis of this
appeal.
          Kirven testified that he and defendant had been
friends, and that he knew defendant to go by the name of "Fuzzy."
Kirven had written the name "Fuzzy" and "Fuzzy's" phone number in
his address book.   When asked if he was at the intersection of
Foch and Guy R. Brewer on the day of the shooting, Kirven invoked
his Fifth Amendment privilege against self-incrimination.    He
continued to invoke that privilege with regard to five additional
questions posed by the prosecutor concerning: whether he had
heard shots; whether he had observed defendant fire any shots;
where he had been standing when he had heard gunfire; whether he
and defendant had conversed prior to the shooting; and what type
of shirt he was wearing on that day.
          Once Kirven received immunity concerning questions as
to where he was standing and whether he and defendant had engaged
in a conversation prior to the shooting, he testified that he was
in the park when the shooting had occurred but that he and
defendant had not engaged in any conversation.   As to other


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questions, the court directed Kirven to answer and he did so,
testifying that he had seen defendant at the park approximately
15 to 20 minutes prior to the shooting,1 and that he was present
at the time but heard only one gunshot.   Because his answers were
contrary to what he had told police, the prosecutor sought to
impeach Kirven with the statement that he had given shortly after
the shooting.   Over defense counsel's objection, the court
allowed a redacted version of the statement to be introduced into
evidence for impeachment purposes, with a limiting instruction
that the statement was admitted not for its truthfulness but for
the sole purpose of impeaching Kirven's credibility.
          After the defense presented its case, which included
the testimony of an expert in the field of eyewitness
identification, defendant was convicted of murder in the second
degree, attempted murder in the second degree, and criminal
possession of a weapon in the second and third degrees.
          The Appellate Division affirmed the judgment, rejecting
defendant's contention that Kirven's invocation of his Fifth
Amendment privilege added "critical weight" to the People's case
and that Kirven's testimony deprived him of a fair trial.     The
court also held that the trial court properly allowed the People
to impeach Kirven with his prior inconsistent statements (110


     1
        Days later, after being re-called to the stand, Kirven
testified that he did not see defendant at the park on the day of
the shooting, contradicting his earlier testimony that defendant
was present.

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AD3d 1002, 1002 [2d Dept 2013]).
          A Judge of this Court granted defendant leave to
appeal, and we now affirm.
                                I.
          Defendant first contends that the trial court committed
reversible error by allowing the People to "deliberately" call
Kirven "solely to elicit a claim of privilege," with Kirven's
invocation of the privilege allegedly adding "critical weight" to
the People's case.   It is defendant's contention that the People
called Kirven in bad faith so that they could question him about
topics that they knew would require him to invoke his Fifth
Amendment privilege in front of the jury.   The trial court
rejected that claim and we conclude that its determination in
this regard was proper.
          The Fifth Amendment of the United States Constitution
directs that no person "shall be compelled in any criminal case
to be a witness against himself" (US Const Amend V).   When a
witness invokes the Fifth Amendment privilege in front of the
jury, "the effect of the powerful but improper inference of what
the witness might have said absent the claim of privilege can
neither be quantified nor tested by cross-examination, imperiling
the defendant's right to a fair trial" (People v Vargas, 86 NY2d
215, 221 [1995], citing People v Pollock, 21 NY2d 206, 212
[1967]; United States v Maloney, 262 F2d 535, 537-538 [2d Cir
1959]; Namet v United States, 373 US 179, 185-186 [1963]).      It is


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therefore reversible error for the trial court to permit the
prosecutor to deliberately call a witness for the sole purpose of
eliciting a claim of privilege (see Pollock, 21 NY2d at 212-213;
see also Vargas, 86 NY2d at 221).   The critical inquiry is
whether the prosecution exploited the witness's invocation of the
privilege, either by attempting "to build its case on inferences
drawn from the witness's assertion of the privilege" or utilizing
those inferences to "unfairly prejudice [the] defendant by adding
'critical weight' to the prosecution's case in a form not subject
to cross-examination" (Vargas, 86 NY2d at 221, quoting Namet, 373
US at 186-187).
          It is clear that the People did not call Kirven for the
sole purpose of eliciting his invocation of the privilege or "in
a conscious and flagrant attempt to build its case out of
inferences arising from the use of the testimonial privilege"
(Namet, 373 US at 186; see Pollock, 21 NY2d at 209-211 [in a case
where joint defendants denied killing the victim and claimed
their confessions were false and extracted by force, but where
each confession specifically referred to one Earl James as an
accomplice, it was error for the People to call James for the
sole purpose of having him invoke the testimonial privilege,
which created in the jurors' mind the inference that James was
incriminating not only himself but the joint defendants as well];
Vargas, 86 NY2d at 223-224 [prosecutor's awareness of the
witness's intent to invoke testimonial privilege, coupled with


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her repeated violations of the court's order not to question the
witness on those matters and her summation references to the
invocation of the privilege, constituted an improper attempt on
the part of the People to build their case on improper inferences
that could be drawn from the invocation of the privilege]).
           There were other matters, as conceded by the defense,
that warranted Kirven being called.    Nor did the People utilize
Kirven's invocation on summation to raise impermissible
inferences that defendant committed the crimes.   There is also no
indication that the People's motive for calling Kirven was solely
to raise inferences of defendant's guilt based on his invocation
of the privilege.   The People were prepared to, and in fact did,
grant immunity to Kirven with regard to specific questions in an
effort to provide a clear picture of events leading up to the
shooting and its immediate aftermath.2
                                II.
          Defendant next argues that the People's impeachment of
Kirven violated CPL 60.35, which modified the common law rule
against impeachment of one's own witness by allowing a party who

     2
        Nor can it be said that Kirven's invocation of the
privilege lent "critical weight" to the People's case in a manner
not subject to cross-examination (Namet, 373 US at 187). Kirven
invoked the testimonial privilege only six times in over 80 pages
of transcript. Moreover, on all but one of those occasions, he
was either directed to answer by the trial court or was granted
immunity in regard to his answers as to the particular questions.
Thus, inasmuch as Kirven answered and was subject to cross-
examination in those instances, there was no danger of the jury
drawing improper inferences.

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called the witness to show that the witness has made statements
that are inconsistent with his or her trial testimony.   That
provision states, as relevant here, that when a witness called by
a party "gives testimony upon a material issue of the case which
tends to disprove the position of such party, such party may
introduce evidence that such witness has previously made . . . a
written statement signed by him . . . contradictory to such
testimony" (CPL 60.35 [1]).
          Evidence of a prior contradictory statement may be
received for the limited purpose of impeaching the witness's
credibility with respect to his or her testimony, and, upon its
receipt of the evidence, the court must instruct the jury that
the evidence is for impeachment purposes only and does not
constitute evidence in chief (see CPL 60.35 [2]).   The evidence
of the prior statement is not admissible, however, if the
testimony of the witness "does not tend to disprove the position
of the party who called him [or] her and elicited [the
contradictory] testimony" (CPL 60.35 [3]).   Thus, before a party
may impeach its own witness, the testimony on a "material fact"
must "tend[] to disprove the party's position or affirmatively
damage[] the party's case" (People v Saez, 69 NY2d 802, 804
[1987] citing CPL 60.35 [1]; People v Fitzpatrick, 40 NY2d 44, 51
[1976] [witness who merely states that he cannot recall events in
question does not "tend to disprove" the prosecution's case]).
          Here the trial court properly allowed the People to


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introduce Kirven's redacted statement for the purpose of
impeaching him because portions of his testimony were contrary to
what he had told police two years earlier and "affirmatively
damaged" the People's case.   Kirven's testimony that he heard
only one shot and did not see defendant firing at a car had the
possibility of jeopardizing charges of both second degree murder
for the death of Salley and attempted murder for shooting at
Bush.   Kirven's testimony that he had heard only one shot tended
to disprove the People's theory of multiple shots fired at both
Salley and Bush, and would have disproved the position that
defendant intended to cause the death of both.   In addition,
Kirven had previously signed a statement indicating that
defendant was the shooter, but at trial stated that he did not
see defendant at the scene.   Importantly, the trial court
instructed the jury on three separate occasions -- twice during
trial and once during its reading of the jury instructions --
that the redacted statement was admitted solely for the purpose
of impeaching Kirven's credibility and not for its truthfulness.
On this record, it cannot be said that the trial court erred in
allowing the People to introduce the redacted statement for its
limited purpose of impeachment.
                              III.
           Defendant's final contention is that he was deprived of
his right to a fair trial and to present a defense by the trial
court's ruling precluding his identification expert from


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testifying about the effect of high stress on the accuracy of an
identification.
           During the trial, defense counsel sought testimony from
an identification expert to address, among other things, "weapon
focus," the lack of correlation between certainty and accuracy by
identifying witnesses, i.e., "witness confidence," and, as
relevant here, the effect of a witness undergoing a traumatic or
significant event, i.e., "event stress."   The court ruled that
defendant's expert could testify relative to weapon focus and
witness confidence, but could not testify as to the effect of
event stress because, based on its research, that topic was not
generally accepted in the scientific community.
           Expert testimony that is proffered relative to the
reliability of eyewitness identification "is not inadmissible per
se," but "the decision whether to admit it rests in the sound
discretion of the trial court" (People v Lee, 96 NY2d 157, 160
[2001]).   Such decision should be guided by "whether the
proffered expert testimony would aid a lay jury in reaching a
verdict" (id. at 162 [internal quotation marks omitted]).    We
have acknowledged, however, that
           "where [a] case turns on the accuracy of
           eyewitness identifications and there is
           little or no corroborating evidence
           connecting the defendant to the crime, it is
           an abuse of discretion for the trial court to
           exclude expert testimony on the reliability
           of expert identifications if that testimony
           is (1) relevant to the witness's
           identification of defendant, (2) based on
           principles that are generally accepted within

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             the relevant scientific community, (3)
             proffered by a qualified expert and (4) on a
             topic beyond the ken of the average juror"
             (People v LeGrand, 8 NY3d 449, 452 [2007]).
             Under the circumstances of this case, it cannot be said
that the trial court abused its discretion in not allowing the
defense expert to testify with regard to the effect of stress on
the reliability of witness identification.    The People sought a
ruling at trial concerning the parameters of the defense expert's
testimony.    The defense failed to submit any evidence
demonstrating that its expert's testimony on the topic of event
stress met the reliability concerns of Frye v United States (293
F. 1013 [DC Cir. 1923]).
             In any event, the trial court did not wholly preclude
the defense expert from offering any expert testimony concerning
eyewitness identification.    It permitted the expert to testify on
the topic of witness confidence, which we have held is an area
that has been deemed generally acceptable in the relevant
scientific community, namely, correlation between witness
confidence and accuracy of identification (see e.g. People v
Santiago, 17 NY3d 661, 672 [2011]; People v Abney, 13 NY3d 251,
268 [2009]; LeGrand, 8 NY3d at 457-458 [noting that once a
scientific procedure has been deemed reliable, a Frye inquiry
need not be conducted each time such evidence is offered and
courts may take judicial notice of the reliability of the general
procedure]).    The court also permitted the expert to testify
concerning weapon focus without first conducting a Frye hearing

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(see Abney, 13 NY3d at 268 [holding that the trial court should
have conducted a Frye hearing on the issue of weapon focus];
LeGrand, 8 NY3d at 458 [holding that there was insufficient
evidence to confirm that the principles expounded by the defense
expert witness on weapon focus were generally accepted by the
relevant scientific community]).
          Unlike the situations in Santiago, Abney, and LeGrand,
where the trial courts precluded all expert testimony concerning
the reliability of eyewitness identification, the trial court
here made a reasoned determination concerning the kinds of expert
testimony that were relevant.    The defense in the three
aforementioned cases moved in limine for a pre-trial
determination concerning what topics the respective experts could
render, whereas the defense here made no such motion, leaving it
up to the People to request that the court discuss the parameters
of the expert's testimony.
          Defendant, relying on our holding in Abney, argues that
the trial court improperly precluded the event stress testimony
without a Frye hearing.   Abney, however, is distinguishable.
There the victim, in an encounter that this Court deemed
"fleeting," was robbed at knifepoint by a man on the subway
stairs (Abney, 13 NY3d at 257).    The court excluded all of the
proposed expert witness testimony, holding that there was
"nothing unique about the case" that presented issues that were
beyond the ken of the jury (id. at 260).    We held that the trial


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judge abused his discretion in not allowing the defense expert to
testify on the issue of witness confidence, which we acknowledged
is generally accepted within the relevant scientific community
(see id. at 268).   With respect "to the remaining relevant
proposed areas of expert testimony," two of which were event
stress and weapon focus, we held that the trial court should have
held a Frye hearing (id. [emphasis supplied]).
          Unlike the situation in Abney, the encounter between
Bush and defendant was anything but "fleeting."   Bush had the
opportunity to observe defendant for five to ten minutes in a
confrontation just an hour and a half prior to the shooting.
This was not an instance where the witness had never seen the
alleged perpetrator before.
          We have acknowledged that even when expert testimony is
required, the trial court is "obliged to exercise its discretion
with regard to the relevance and scope of such expert testimony"
and that "not all categories of such testimony are applicable or
relevant in every case" (LeGrand, 8 NY3d at 459).   The trial
court here permitted the expert to testify in two key areas --
witness confidence and weapon focus -- both of which were
particularly relevant in this case, where Bush had testified that
he had concentrated on defendant's face during the shooting.
Moreover, in light of Bush having observed defendant on a prior
occasion just 90 minutes prior to the shooting, it cannot be said
that the trial court abused its discretion by precluding the


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expert's testimony with regard to so-called event stress on the
ground that it was not relevant.
            Accordingly, the order of the Appellate Division should
be affirmed.
*   *   *    *   *   *   *   *     *      *   *   *   *   *   *   *   *
Order affirmed. Opinion by Judge Pigott. Chief Judge DiFiore
and Judges Rivera, Abdus-Salaam, Stein, Fahey and Garcia concur.

Decided March 29, 2016




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