People v. Oge

287 A.D.2d 469, 730 N.Y.S.2d 869, 2001 N.Y. App. Div. LEXIS 9246

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Silverman, J.), rendered April 17, 1998, convicting him of assault in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, the cumulative evidence presented at the Sirois hearing (see, Matter of Holtzman v Hellenbrand, 92 AD2d 405), and the inferences that logically flow therefrom were sufficient to support the Supreme Court’s determination, under the clear and convincing evidence standard, that the defendant’s misconduct caused the complainant’s unavailability to testify at trial (see, People v Geraci, 85 NY2d 359, 370; cf., People v Hamilton, 70 NY2d 987). Accordingly, the Supreme Court properly allowed the use of the complainant’s Grand Jury testimony as part of its direct case. Furthermore, the complainant’s Grand Jury testimony had sufficient indicia of reliability to permit its admission at the trial (see, People v Cotto, 92 NY2d 68, 78; People v Tuzzio, 201 AD2d 595; People v Small, 177 AD2d 669).

The sentence imposed was not excessive (see, People v Suitte, 90 AD2d 80). O’Brien, J. P., Luciano, Smith and Crane, JJ., concur.