| People v Steward |
| 2008 NY Slip Op 07021 [54 AD3d 880] |
| September 16, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Levern Steward, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Douglas Noll and Cristin N. Connell ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (Honorof, J.),rendered November 10, 2005, convicting him of criminal sale of a controlled substance in thethird degree and criminal possession of a controlled substance in the third degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
The defendant was convicted of selling crack cocaine to a confidential informant while hewas under police surveillance. The confidential informant did not testify at the trial and anaudiotape of the transaction was inaudible. The People's evidence consisted of the testimony ofthe detectives who had the confidential informant under surveillance and the confidentialinformant's grand jury testimony, which was admitted in evidence after a Sirois hearing(see Matter of Holtzman v Hellenbrand, 92 AD2d 405 [1983]). The defendant testified atthe trial and denied the allegations against him.
The trial court ordered the Sirois hearing on July 21, 2005 after the prosecutor notedthat the confidential informant told him the day before that he would not testify because he hadbeen approached by a young black male on a bicycle who told him "Do not testify tomorrow. Weknow where your family lives," and his brother, who resembles him, was approached by a manwho threatened to break his nose. The prosecutor further noted that the records of the defendant'stelephone calls from jail indicate that the [*2]defendant made notelephone calls from July 10 through July 18, 2005; however, on July 19, the day the defendantlearned the identity of the confidential informant and the day before the informant wasthreatened, "there are six phone calls that he makes to three different numbers." The prosecutorstated that two of the telephone calls were to "cell phones" and "we have names on others."Defense counsel acknowledged that the defendant had called the mother of his two children.
At the Sirois hearing, one of the detectives involved in the case testified that theconfidential informant left a telephone message on his answering machine describing the threatby the young man on the bicycle. The detective further testified that the confidential informantspoke to him that morning to describe the threat to the informant's brother. The detective notedthat an investigator from the Sheriff's Department left a telephone message that the defendantmade no telephone calls from July 10, 2005 through July 18, 2005, and made six telephone callson July 19, 2005. At the conclusion of the detective's testimony, the court ruled that theconfidential informant's grand jury testimony was admissible in evidence at trial.
Later that day, defense counsel offered to produce the mother of the defendant's two childrento confirm that one of the telephone calls was made to her. The prosecutor noted that there weresix telephone calls to three telephone numbers, and identified the telephone numbers. Theprosecutor further noted that one of the telephone numbers was a Verizon wireless "which wehave not been as of yet been able to ascertain" but the other people were "males" or "at least oneof them was a male." Defense counsel offered to identify the names corresponding with thetelephone numbers, and the defendant stated that one of the three telephone numbers belonged tothe mother of his children. The court denied the defendant's application to reopen the Siroishearing.
The People's burden at the Sirois hearing was to "demonstrate by clear andconvincing evidence that the defendant, by violence, threats or chicanery, caused a witness'sunavailability" (People v Cotto, 92 NY2d 68, 75-76 [1998]; see People v Geraci,85 NY2d 359, 366 [1995]). The People submitted sufficient evidence that the confidentialinformant was threatened, through evidence of the confidential informant's out-of-courtstatements (see People v Cotto, 92 NY2d at 76). However, the People's proof wasinsufficient to link those threats to the defendant by clear and convincing evidence (id. at76). There was no evidence of a prior history of coercion, and the defendant was incarceratedduring the trial, limiting his opportunities to orchestrate the threats (id. at 76). The factthat the defendant made telephone calls to one or possibly two "males" from jail was insufficientto meet the People's heavy burden of proof. Further, under the circumstances of this case, the trialcourt, by refusing to reopen the Sirois hearing, deprived the defendant of his right topresent evidence to refute the People's contention that the defendant was responsible for thethreats (see People v Johnson, 93 NY2d 254 [1999]).
We further note that, although the defendant laid the proper foundation for the admission intoevidence of a supplemental police report as a business record (see CPLR 4518;People v DiSalvo, 284 AD2d 547, 548 [2001]), or a prior inconsistent statement of oneof the two detectives who had the confidential informant under surveillance (see People vDuncan, 46 NY2d 74, 80 [1978], cert denied 442 US 910 [1979]), the trial courtimproperly refused to allow its admission into evidence.
Under the circumstances of this case, these errors cannot be considered harmless (seegenerally Perkins v Herbert, 537 F Supp 2d 481 [2008]).[*3]
The defendant's remaining contentions need not beaddressed in light of our determination. Skelos, J.P., Santucci, Balkin and Chambers, JJ., concur.