PEOPLE v. PACE (2002)

 On appeal from a judgment convicting him of murder in the second degree (Penal Law § 125.25[1] ) and criminal possession of a weapon in the third degree (§ 265.02[1] ), defendant contends that the People's introduction of the sworn statement and grand jury testimony of an eyewitness violated his right of confrontation.   Contrary to defendant's contention, the People proved by clear and convincing evidence that the unavailability of the eyewitness to testify against defendant at trial was the result of “the misconduct of the defendant personally[ ] or of others on his * * * behalf with the defendant's knowing acquiescence” (People v. Maher, 89 N.Y.2d 456, 461, 654 N.Y.S.2d 1004, 677 N.E.2d 728;  see People v. Major, 251 A.D.2d 999, 675 N.Y.S.2d 260, lv. denied 92 N.Y.2d 927, 680 N.Y.S.2d 469, 703 N.E.2d 281;  People v. Delarosa, 218 A.D.2d 667, 668, 630 N.Y.S.2d 357).   The evidence is sufficient to establish that the eyewitness was threatened and to link the threats to defendant (see People v. Cotto, 92 N.Y.2d 68, 76, 677 N.Y.S.2d 35, 699 N.E.2d 394).   Thus, “defendant is precluded from asserting either ‘the constitutional right of confrontation or the evidentiary rules against the admission of hearsay in order to prevent the admission’ ” of the eyewitness's sworn statement and grand jury testimony (id. at 76, 677 N.Y.S.2d 35, 699 N.E.2d 394, quoting People v. Geraci, 85 N.Y.2d 359, 366, 625 N.Y.S.2d 469, 649 N.E.2d 817;  see also People v. Johnson, 93 N.Y.2d 254, 256-257, 689 N.Y.S.2d 689, 711 N.E.2d 967).

We reject the contention of defendant that he was deprived of a fair trial by prosecutorial misconduct on summation.   The prosecutor's remark was fair response to the misleading insinuation in defense counsel's summation, which referred to the absence of the unavailable eyewitness (see generally People v. Root, 298 A.D.2d 855, 747 N.Y.S.2d 822;  People v. Davis, 294 A.D.2d 936, 937, 742 N.Y.S.2d 758, lv. denied 98 N.Y.2d 696, 747 N.Y.S.2d 414, 776 N.E.2d 3).

Contrary to the further contention of defendant, his challenges for cause with respect to two prospective jurors were properly denied (see People v. Chambers, 97 N.Y.2d 417, 419, 740 N.Y.S.2d 291, 766 N.E.2d 953;  People v. Shaughnessy, 286 A.D.2d 856, 857, 730 N.Y.S.2d 467, lv. denied 97 N.Y.2d 688, 738 N.Y.S.2d 304, 764 N.E.2d 408;  People v. Horace, 277 A.D.2d 957, 715 N.Y.S.2d 127, lv. denied 96 N.Y.2d 784, 725 N.Y.S.2d 648, 749 N.E.2d 217;  People v. Wiegert, 248 A.D.2d 929, 670 N.Y.S.2d 128, lv. denied 91 N.Y.2d 1014, 676 N.Y.S.2d 142, 698 N.E.2d 971).

 County Court properly precluded defendant from introducing certain out-of-court statements of the unavailable eyewitness.   The statements were hearsay and thus inadmissible when offered by defendant, absent some applicable exception to the hearsay rule (see People v. Huertas, 75 N.Y.2d 487, 491-492, 554 N.Y.S.2d 444, 553 N.E.2d 992;  see generally People v. Thomas, 282 A.D.2d 827, 725 N.Y.S.2d 102).   In any event, the forfeiture by defendant of his constitutional right of confrontation as a result of his threatening the eyewitness precludes his attempt to introduce, on his own case, further out-of-court statements of the eyewitness in order to impeach the sworn statement and grand jury testimony of the eyewitness.

The sentence, an indeterminate term of imprisonment of 25 years to life, is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: