PEOPLE v. LINTON (2005)

Appeal by the defendant from a judgment of the County Court, Westchester County (Lange, J.), rendered February 25, 2000, convicting him of assault in the first degree, criminal use of a firearm in the first degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.   Justice Spolzino has been substituted for the late Justice Altman (see 22 NYCRR 670.1[c] ).

ORDERED that the judgment is affirmed.

 The defendant intentionally and repeatedly shot the complainant, who sustained gunshot wounds to his hip, back, and both his hands.   The shooting was witnessed by several individuals who testified at trial.   Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see Penal Law 120.10[1];  People v. Foster, 278 A.D.2d 241, 717 N.Y.S.2d 303;  People v. Palmer, 197 A.D.2d 712, 602 N.Y.S.2d 921;  People v. Aupperlee, 168 A.D.2d 561, 564 N.Y.S.2d 239;  People v. Lynch, 135 A.D.2d 865, 523 N.Y.S.2d 140).   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5] ).

 The record did not establish that the complainant refused to testify, but rather, at the time of the trial, he no longer remembered the details of the shooting.   As such, his Grand Jury testimony, which he described as accurate when given, was properly admitted as a past recollection recorded to supplement his in-court testimony, which was subject to cross-examination (see People v. Taylor, 80 N.Y.2d 1, 8-9, 586 N.Y.S.2d 545, 598 N.E.2d 693;  People v. Rivera, 255 A.D.2d 608, 681 N.Y.S.2d 75;  People v. Turner, 210 A.D.2d 445, 620 N.Y.S.2d 434).   A Sirois hearing was not required (see People v. Geraci, 85 N.Y.2d 359, 625 N.Y.S.2d 469, 649 N.E.2d 817;  Matter of Holtzman v. Hellenbrand, 92 A.D.2d 405, 460 N.Y.S.2d 591).

 In Crawford v. Washington, 541 U.S. 36, 53-54, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177, the United States Supreme Court held that it was a violation of an accused's Sixth Amendment right to confront the witnesses against him, where testimonial evidence is admitted from a presently unavailable witness and there was no prior opportunity to cross-examine the witness.   Although the Supreme Court declined to offer a comprehensive definition of “testimonial” evidence, Grand Jury testimony was specifically included in the class of prior testimonial evidence which implicates the Confrontation Clause in the event the witness is not available for cross-examination at trial (id. at 68, 124 S.Ct. 1354).   Here, the victim, whose prior Grand Jury testimony was read to the petit jury, testified at trial and was subject to cross-examination.   Accordingly, there was no violation of the Confrontation Clause.

 In any event, in light of the uncontradicted testimony of the two eyewitnesses, who unequivocally identified the defendant and described the shooting in great detail, the admission of the victim's Grand Jury testimony was harmless beyond a reasonable doubt (see People v. Douglas, 4 N.Y.3d 777, 779, 793 N.Y.S.2d 825, 826 N.E.2d 796;  People v. Crimmins, 36 N.Y.2d 230, 237-238, 367 N.Y.S.2d 213, 326 N.E.2d 787;  People v. Ruis, 11 A.D.3d 714, 715, 784 N.Y.S.2d 558;  People v. McBee, 8 A.D.3d 500, 501, 778 N.Y.S.2d 287;  cf. People v. Hardy, 4 N.Y.3d 192, 791 N.Y.S.2d 513, 824 N.E.2d 953).

The verdict finding the defendant guilty of assault in the first degree and not guilty of criminal possession of a weapon in the second degree was not inconsistent (see People v. Tucker, 55 N.Y.2d 1, 7, 447 N.Y.S.2d 132, 431 N.E.2d 617;  People v. Menner, 2 A.D.3d 650, 769 N.Y.S.2d 569;  People v. Anthony, 273 A.D.2d 246, 709 N.Y.S.2d 836;  People v. Holloway, 253 A.D.2d 767, 677 N.Y.S.2d 489).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).