PEOPLE v. HERNANDEZ

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

The PEOPLE, etc., respondent, v. Ramon HERNANDEZ, appellant.

Decided: March 29, 1999

SONDRA MILLER, J.P., DAVID S. RITTER, WILLIAM C. THOMPSON and DANIEL W. JOY, JJ. John C. Sullivan, Hawthorne, N.Y., for appellant. Jeanine Pirro, District Attorney, White Plains, N.Y. (Kenneth A. Christie and Richard Longworth Hecht of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Westchester County (LaCava, J.), rendered March 14, 1997, convicting him of attempted assault in the first degree, assault in the second degree, criminal possession of a weapon in the second degree, and reckless endangerment in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 Contrary to the defendant's contention, the trial court properly permitted the People to read into evidence the felony hearing testimony of a missing witness pursuant to CPL 670.10.   At the hearing regarding the admissibility of this testimony, two police officers testified as to the extensive efforts made to locate the witness who escaped from police custody and has remained a fugitive.   We are satisfied that it is very unlikely that any additional efforts would have resulted in locating the witness (see, People v. Wiggins, 189 A.D.2d 908, 910, 593 N.Y.S.2d 62;  People v. Nucci, 162 A.D.2d 725, 557 N.Y.S.2d 422).

 There is no merit to the defendant's contention that the testimony of the missing witness should not have been admitted since there was inadequate cross-examination at the felony hearing.   The cross-examination of the witness was conducted by an experienced practitioner and was unrestricted by the hearing court.   Thus, the defendant received a full and fair opportunity to cross-examine the witness (see, People v. Arroyo, 54 N.Y.2d 567, 570-573, 446 N.Y.S.2d 910, 431 N.E.2d 271, cert. denied, 456 U.S. 979, 102 S.Ct. 2248, 72 L.Ed.2d 855).   In addition, the hearing court properly determined that the witness's identification of the defendant shortly after the crime was merely confirmatory (see, People v. Rodriguez, 79 N.Y.2d 445, 449-450, 583 N.Y.S.2d 814, 593 N.E.2d 268).

MEMORANDUM BY THE COURT.

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