PEOPLE v. MILLER (2009)

 On appeal from a judgment convicting him of, inter alia, murder in the second degree (Penal Law § 125.25[1] ), defendant contends that County Court erred in admitting in evidence the grand jury testimony and out-of-court statements of two witnesses following a Sirois hearing (see Matter of Holtzman v. Hellenbrand, 92 A.D.2d 405, 460 N.Y.S.2d 591).   We reject that contention.   The People established that the witnesses were unavailable based on the misconduct of individuals acting on defendant's behalf, with defendant's acquiescence (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).   Indeed, we further note that the People presented circumstantial evidence that threats made to the witnesses were in fact made at defendant's request (see People v. Washington, 34 A.D.3d 1193, 823 N.Y.S.2d 805).   Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence with respect to the murder count (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Contrary to defendant's contention, the People presented evidence establishing the elements of identity and intent with respect to that count (see People v. Nieves, 15 A.D.3d 868, 789 N.Y.S.2d 590;  People v. Pagan, 12 A.D.3d 1143, 784 N.Y.S.2d 815, lv. denied 4 N.Y.3d 766, 792 N.Y.S.2d 10, 825 N.E.2d 142).   We have considered defendant's remaining contentions and conclude that they are without merit.

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

MEMORANDUM: