People v. Turner

2016 NY Slip Op 6871, 143 A.D.3d 566, 39 N.Y.S.3d 439

Opinion

Judgment, Supreme Court, New York County (Ruth Pickholz, J.), rendered May 12, 2015, as amended June 12, 2015, convicting defendant, after a jury trial, of attempted murder in the second degree and two counts of criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to an aggregate term of 20 years, unanimously affirmed.

The court properly permitted the People to introduce an eyewitness’s grand jury testimony as evidence-in-chief to establish defendant’s guilt, as it was “demonstrate [d] by clear and convincing evidence that the defendant, by violence, threats or chicanery, caused [the] witness’s unavailability” (People v Cotto, 92 NY2d 68, 75-76 [1998]; see also People v Geraci, 85 NY2d 359 [1995]). There was ample circumstantial evidence (see People v Encarnacion, 87 AD3d 81, 85-89 [1st Dept 2011], lv denied 17 NY3d 952 [2011]), including defendant’s recorded phone calls and reasonable interpretations thereof, to support the conclusion that defendant, acting through proxies, influenced the witness to give false trial testimony, thereby rendering her effectively unavailable (see People v White, 4 AD3d 225 [1st Dept 2004], lv denied 3 NY3d 650 [2004]), and that the change in her testimony could only be explained by this unlawful influence. We have considered and rejected defendant’s remaining arguments.

Concur — Mazzarelli, J.P., Acosta, Richter, Kapnick and Gesmer, JJ.