| People v McCrae |
| 2010 NY Slip Op 00284 [69 AD3d 759] |
| January 12, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Deion McCrae, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J.Dennehy of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lott, J.),rendered April 30, 2007, convicting him of attempted murder in the second degree and criminalpossession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
In December 2004, James McCrae testified before a Kings County grand jury that he wasshot in the face by Deion McCrae (hereinafter the defendant). Following the shooting, thedefendant was indicted, inter alia, for attempted murder in the second degree and weaponspossession charges. In September 2005, James McCrae was fatally shot; in that incident, he wasshot several times while seated in the driver's seat of his automobile, when it was sprayed withbullets. After an investigation, the defendant was indicted, among other things, for murder in thefirst degree, murder in the second degree, and several weapons possession charges.
In March 2006, the Supreme Court granted the People's motion to consolidate theindictments for trial (see CPL 200.20 [2] [c]). After a Sirois hearing (seeMatter of Holtzman v Hellenbrand, 92 AD2d 405, 415 [1983]), the Supreme Courtdetermined that "the People established by clear and convincing evidence that the defendant wasinvolved in the murder of James McCrae, the finding of which permits the People to offer JamesMcCrae's grand jury testimony in [the trial of] indictment 665/05." After a trial, the jury returneda partial verdict, convicting the defendant of attempted murder in the second degree and criminalpossession of a weapon in the second degree for the December 2004 shooting. The trial courtdeclared a mistrial with respect to the first-degree and second-degree murder charges and therelated weapons possession charges filed in connection with the complainant's death inSeptember of 2005. After a retrial on those charges, the jury was unable to reach a verdict andthe court declared a second mistrial. The defendant was not retried again.
The trial court properly exercised its discretion in consolidating the two indictments for asingle trial. Both indictments charge offenses under the murder statute and the criminalpossession of a weapon statute and, therefore, could properly be consolidated under CPL 200.20(2) (c) (see People v McNeil, 39AD3d 206 [2007]; People v Gwathney, 298 AD2d 526, 527 [2002]; People vHall, 272 AD2d 412 [2000]). In [*2]any event, consolidationalso would have been proper under CPL 220.20 (2) (b), as, under the circumstances of this case,proof of one indictment is material and admissible as evidence in chief upon the trial of the otherindictment (see People v Kelley, 46AD3d 1329, 1331-1332 [2007]; People v Torra, 309 AD2d 1074, 1075 [2003];People v Jones, 224 AD2d 334, 335 [1996]).
Upon the conclusion of the Sirois hearing, the trial court properly determined thatthere was clear and convincing evidence that the defendant was involved in the murder of JamesMcCrae (see Matter of Holtzman v Hellenbrand, 92 AD2d 405 [1983]) and, on thatbasis, properly admitted James McCrae's grand jury testimony into evidence at the trial on thefirst indictment under the "forfeiture by wrongdoing" doctrine (Giles v California, 554US —, —, 128 S Ct 2678, 2683 [2008]; see People v Geraci, 85 NY2d 359,366 [1995]). Evidence consisted of testimony that James McCrae had been approached a monthor two before the murder and asked, on behalf of the defendant, to drop the initial charges, thatthe defendant had stated to another witness that he (the defendant) wasn't worried about theattempted murder trial, as he was going to have James McCrae killed, and that, at the scene ofthe second shooting, James McCrae stated, before his death, that he had been shot by "Skip,"which was the defendant's nickname (see People v Geraci, 85 NY2d at 366). We findunpersuasive the defendant's argument that Giles v California (554 US —, 128 SCt 2678 [2008]) requires a different result. On this record, the evidence is clear and convincingthat any murder of James McCrae by the defendant was designed and intended to prevent JamesMcCrae from testifying at trial.
We discern no need to remit the matter for a further Sirois hearing. A remittal for afurther hearing is not required where, as here, the evidentiary record is sufficient for this Court tomake determinations of fact and law, and, given the unavailability of the trial justice, judicialeconomy would be fostered (see CPL 470.15 [1]; People v Neely, 219 AD2d444, 446 [1996]; see also People v Mitchell, 290 AD2d 518, 518-519 [2002]).
The trial court also properly admitted into evidence, pursuant to the "forfeiture bywrongdoing" doctrine (Giles v California, 554 US at —, 128 S Ct at 2683), JamesMcCrae's statements made at the scene of the second shooting for the reasons stated above. Inany event, the statements were independently admissible as dying declarations (see People vNieves, 67 NY2d 125, 132-133 [1986]).
The testimony at trial of a detective regarding James McCrae's photo identification of thedefendant after the first shooting was properly admitted into evidence as, on this record, thedefense had opened the door to the issue of whether the witness could make a reliableidentification (see People vHamilton, 33 AD3d 937, 938 [2006]; People v Jackson, 240 AD2d 680 [1997];People v Marrero, 117 AD2d 626 [1986]). Dillon, J.P., Florio, Hall and Sgroi, JJ.,concur.