PEOPLE v. WATSON (2005)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered May 2, 2002, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The Supreme Court properly denied the defendant's request to introduce the grand jury testimony of a witness who had since become unavailable to testify at trial.   Evidence of this type “must be admitted when it is material, exculpatory and has sufficient indicia of reliability” (People v. Stultz, 2 N.Y.3d 277, 286, 778 N.Y.S.2d 431, 810 N.E.2d 883).   Although the unavailable witness's testimony did carry sufficient indicia of reliability (see People v. Robinson, 89 N.Y.2d 648, 656-657, 657 N.Y.S.2d 575, 679 N.E.2d 1055;  People v. Arce, 309 A.D.2d 1191, 1192, 764 N.Y.S.2d 758), it was nevertheless properly excluded by the trial court because, even if believed, it was neither material nor exculpatory (see People v. Robinson, supra at 654-655, 657 N.Y.S.2d 575, 679 N.E.2d 1055;  People v. Douglas, 304 A.D.2d 458, 459, 757 N.Y.S.2d 728).