People v. Chestnut
2017 NY Slip Op 2674
N.Y. App. Div.
2017
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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v ROBERT CHESTNUT, Appellant.

Appellate Division of the Supreme Court of New York, Second Department

Cyrulnik, J.

149 A.D.3d 772, 50 N.Y.S.3d 549

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v ROBERT CHESTNUT, Appellant. [50 NYS3d 549]—

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Cyrulnik, J.), rendered October 15, 2013, convicting him of assault in the first degree and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

A witness’s testimony in a previous proceeding may be admitted as part of the People’s direct case where the People “demonstrate by clear and convincing evidence that the defendant, by violence, threats or chicanery, caused [the] witness’s unavailability” (

; see
;
). “Recognizing the surreptitious nature of witness tampering and that a defendant engaging in such conduct will rarely do so openly, resorting instead to subterfuge, the court can rely on and the prosecution can use circumstantial evidence in making the requisite determination” (
 [internal quotation marks omitted]). Here, after a Sirois hearing (see
;
), the Supreme Court properly determined that the People established, by clear and convincing evidence, that the complainant had been rendered unavailable due to threats made at the defendant’s initiative or acquiescence (see
;
). Accordingly, the People were properly allowed to use the complainant’s grand jury testimony as part of their direct case at trial (see
).

Contrary to the defendant’s contention, the Supreme Court providently exercised its discretion in denying his request for a missing witness charge, as the defendant failed to meet his initial burden of establishing that the uncalled witness would have provided noncumulative testimony and that the uncalled witness was under the People’s control (see

;
;
).

The defendant’s contention that the evidence was legally insufficient to establish that the complainant sustained a serious physical injury, as required for the conviction of assault in the first degree (see Penal Law §§ 10.00 [10]; 120.10 [1]), is unpreserved for appellate review (see CPL 470.05 [2];

). In any event, viewing the evidence in the light most favorable to the prosecution (see
), we find that it was legally sufficient to establish the defendant’s guilt of assault in the first degree beyond a reasonable doubt. Moreover, upon our independent review of the evidence pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt was not against the weight of the evidence (see
).

Finally, defense counsel’s failure to object to the admission of certain DNA evidence did not constitute ineffective assistance of counsel (see

;
;
).

Leventhal, J.P., Sgroi, Hinds-Radix and LaSalle, JJ., concur.