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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Respondent, v. Cornell FLOWERS, Appellant.  (Appeal No. 1.)

Decided: December 31, 1997

Before GREEN, J.P., and PINE, HAYES, CALLAHAN and FALLON, JJ. Gerald T. Barth by Benjamin Coffin, Syracuse, for Appellant. William J. Fitzpatrick by Kenneth Rosso, Syracuse, for Respondent.

 County Court did not abuse its discretion in directing that three indictments be consolidated for trial (see, CPL 200.20[4], [5] ).  Evidence of defendant's prior assaults of the victim, as charged in the first two indictments, was relevant and admissible to show defendant's motive and intent with respect to the charge in the third indictment that defendant intentionally killed the victim (see, People v. Bongarzone, 69 N.Y.2d 892, 895, 515 N.Y.S.2d 227, 507 N.E.2d 1083;  People v. Burroughs, 191 A.D.2d 956, 957, 595 N.Y.S.2d 264, lv. denied 82 N.Y.2d 715, 602 N.Y.S.2d 812, 622 N.E.2d 313).   Thus, the offenses charged in each indictment were joinable for trial purposes pursuant to CPL 200.20(2)(b) (see, People v. Bongarzone, supra, at 895, 515 N.Y.S.2d 227, 507 N.E.2d 1083).

 There is no merit to defendant's contention that the court erred in admitting during the People's case-in-chief the testimony of several witnesses concerning prior uncharged crimes and bad acts of defendant toward the victim.   That testimony was relevant to establish defendant's motive and intent in committing the charged crimes (see, People v. Mixon, 203 A.D.2d 909, 909-910, 611 N.Y.S.2d 723, lv. denied 84 N.Y.2d 830, 617 N.Y.S.2d 150, 641 N.E.2d 171, 84 N.Y.2d 909, 621 N.Y.S.2d 526, 645 N.E.2d 1226;  People v. Wright, 167 A.D.2d 959, 960, 562 N.Y.S.2d 301, lv. denied 77 N.Y.2d 845, 567 N.Y.S.2d 214, 568 N.E.2d 663).   Additionally, the probative value of that testimony exceeded its potential for prejudice (see, People v. Moore, 42 N.Y.2d 421, 428, 397 N.Y.S.2d 975, 366 N.E.2d 1330, cert. denied 434 U.S. 987, 98 S.Ct. 617, 54 L.Ed.2d 482).

 Defendant further contends that the court erred in permitting the People to read to the jury the Grand Jury testimony of the victim concerning the first incident of assault.   We agree.   It is well settled that, “[a]s a general rule, the Grand Jury testimony of an unavailable witness is inadmissible as evidence-in-chief” (People v. Geraci, 85 N.Y.2d 359, 365, 625 N.Y.S.2d 469, 649 N.E.2d 817).   An exception to the general rule permits the testimony to be admitted as direct evidence “where the witness is unavailable to testify at trial and the proof establishes that the witness's unavailability was procured by misconduct on the part of the defendant” (People v. Geraci, supra, at 366, 625 N.Y.S.2d 469, 649 N.E.2d 817).   That exception, however, “cannot be invoked where * * * there is not a scintilla of evidence that the defendant's acts against the absent witness were motivated, even in part, by a desire to prevent the victim from testifying against him in court” (People v. Maher, 89 N.Y.2d 456, 462, 654 N.Y.S.2d 1004, 677 N.E.2d 728).   Here, there is no evidence that defendant's acts against the victim were motivated by a desire to prevent her from testifying concerning the incident.   That error, however, is harmless.   The evidence of defendant's guilt is overwhelming, and there is no significant probability that the jury would have acquitted defendant had it not been for the error (see, People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787;  see also, People v. Maher, supra, at 462, 654 N.Y.S.2d 1004, 677 N.E.2d 728).

Judgment unanimously affirmed.


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