691 NYS2d 273 | N.Y. Sup. Ct. | 1999
OPINION OF THE COURT
The defendant is charged with the crimes of robbery in the first degree, criminal possession of a weapon in the second degree (two counts), criminal possession of a weapon in the third degree (two counts), and unlawful imprisonment in the first degree, as the result of an alleged incident at a store on February 26, 1998, during which the defendant and an accomplice, later identified as “Ted”,
The prosecutor, claiming that the victim had been intimidated into not testifying at the trial by the same accomplice of the defendant, acting on behalf of the defendant, requested a pretrial Sirois hearing (People v Cotto, 92 NY2d 68; People v Geraci, 85 NY2d 359; see, Matter of Holtzman v Hellenbrand, 92 AD2d 405, 415) in order to introduce her Grand Jury testimony (People v Geraci, supra) and her out-of-court statements (People v Cotto, supra) at the impending trial.
The defendant objected to a Sirois hearing being conducted pretrial, since in all the decisions which permitted the introduction of an out-of-court statement of a witness because of a defendant’s misconduct, that witness was either dead, absent from the jurisdiction or refused to testify at trial, whereas in this case the victim was within the jurisdiction and subject to a material witness proceeding. This objection was overruled, as in all of those decisions the witness balked during the trial (e.g., People v Cotto, supra), such hearing would avoid the interruption of the trial (see, People v Slater, 53 AD2d 41) and one nisi prius court did conduct such a hearing (People v Banks, 146 Misc 2d 601).
At the hearing, two police investigators testified on behalf of the People as follows:
That the defendant identified Lucky and Ted as his corobbers and that Ted was the lookout; that the victim identified a photograph of Ted as someone in the neighborhood and a
That the victim told them that Ted had advised her not to testify and mentioned in essence that Lucky was one of the robbers and was murdered anyway; that she told them that she had to live and work in the area and would not testify; that she told them their contacts were stressing her, she feared for her safety, she would not testify and she referred to Lucky’s murder; that she complained that Ted had followed her vehicle in his vehicle.
That they served the victim with a subpoena for trial, at which time she cried, told them it was the same as a death warrant, referred to Lucky’s death and told them Ted had spoken to her boyfriend and suggested he advise her not to testify; that they served her with a subpoena for the Sirois hearing, at which time she told them she would not testify at the hearing, she feared for her life, Ted had been warning her not to testify, and she knew Ted to be an associate of Lucky.
At the hearing, a third police investigator testified on behalf of the defendant as follows: that the victim admitted to him that her first narration of the robbery was not totally accurate because the robbers were violent men, she was afraid she would be killed and the drug dealer asked her not to relate the true version of the incident.
The defendant objected to the introduction of the testimony of the two police investigators on the basis that it consisted almost entirely of hearsay. However, all of the State cases involving a Sirois hearing have allowed police investigators to testify to the threats that convinced the intimidated witnesses to refuse to appear in court as related to them by those witnesses (People v Cotto, supra; People v Geraci,
The victim refused to respond to the subpoena served upon her for the Sirois hearing, so a material witness order was issued; she was thereafter arrested, brought before the court and an attorney was appointed to represent her (CPL 620.20-620.40).
The investigator for the prosecutor’s office who had taken the victim into custody testified as follows: that he served the material witness order upon the victim; that she cried for 10 to 15 minutes; that she stated she could not come to court and she did not want to be the next homicide victim; and that she repeated she did not want to die.
Thus, through the hearsay testimony of the four investigators, without resort to the victim’s testimony adduced at the subsequent in camera proceeding discussed infra, the People proved by clear and convincing evidence that the victim had become unavailable to testify at the trial because she had been severely intimidated (see, People v Cotto, 92 NY2d, supra, at 75-76 [“at a Sirois hearing, the People must demonstrate by clear and convincing evidence that the defendant * * * caused a witness’s unavailability”]).
The victim, through her attorney, alleged that she was so traumatized by the threats made against her by Ted that she would not testify in the defendant’s presence, and that if she were able to testify outside of his presence, she did not want the defendant to become aware of the entire contents of her testimony.
With the consent of the prosecutor and over the objection of the defendant, the procedure outlined in People v Darden (supra, at 181) was then followed, viz., the victim was
The Court of Appeals has held that a defendant has the right to be present at any material stage of the trial, and a defendant’s exclusion during a hearing to determine if a prosecution witness should be allowed to testify at trial that the defendant intimidated him was reversible error (People v Turaine, 78 NY2d 871). That case can be distinguished, however, because it did not involve the situation encompassed by a Sirois hearing. Where a witness refuses to testify at trial because of a defendant’s misconduct, the defendant forfeits his rights of confrontation (People v Geraci, 85 NY2d, supra, at 366). This rule should be extended to include a situation in which the defendant’s misconduct is so egregious that the witness refuses to testify at a Sirois hearing.
This theory is not entirely without precedent. In People v Delarosa (218 AD2d 667, supra), a witness was permitted to testify in camera in a Sirois hearing that threats had been made that he and his family would be killed if he testified against the defendant.
At the in camera proceeding, the victim corroborated in all respects the information the four investigators had testified she had disclosed to them; she also provided the following
In addition to the victim’s testimony, there were inferences to be drawn from the evidence that pointed to the defendant as the individual responsible for the intimidation of the victim (People v Cotto, supra, at 77 [“there was no suggestion that anyone else stood to gain from the witness’s silence”];
As accurately claimed by the defendant, there was no direct evidence to demonstrate that the defendant orchestrated the intimidation of the victim, so the prosecutor proved the same by presenting sufficient circumstantial evidence (People v Cotto, supra, at 76 [“Because of ‘the inherently surreptitious nature of witness tampering’ circumstantial evidence may be used to ‘establish, in whole or in part, ‘that a witness’s unavailability was procured by the defendant’ ”]).
Accordingly, the transcript of the victim’s Grand Jury testimony and her out-of-court statements will be admissible upon the trial of this action.
. The last name of Ted was furnished by the police investigators; both the victim and the defendant did not know Ted’s last name.
. The victim’s father corroborated this, but he described only a male black.
. People v Geraci (supra, at 369, n 4) referred to the hearsay problem as not having been raised on appeal, but People v Cotto (supra), the later Court of Appeals case, implicitly sanctioned the receipt of hearsay evidence.
. This decision reasoned that hearsay evidence is admissible because that type of evidence is admitted at pretrial hearings.
. Contrast People v Hamilton (70 NY2d 987) and People v Johnson (250 AD2d 922), where the victims were not intimidated by or on behalf of the defendant, and, in fact, were defense-oriented.
. This was a fact mentioned in this decision; it was not a holding or dicta.
. A transcript of the proceeding was furnished to the defendant’s attorney, and this would equate with the summary furnished to the defendant’s attorney in this case.
. Had the victim given the investigators this same information, they would have been able to testify to it at the Sirois hearing; it would have been equally convincing, and its admission outside of the defendant’s presence should not dilute its efficacy.
. See, People v Small, 177 AD2d 669, supra.
. See, People v Sweeper, 122 Misc 2d, supra, at 391.
. See, People v Banks, 146 Misc 2d, supra, at 603.
. See, People v Cotto, 92 NY2d, supra, at 77.
. Ted, although an accomplice in the robbery, based upon the defendant’s statement, was never identified by the victim, and he has not been charged.
. See, n 13.