| People v McCune |
| 2012 NY Slip Op 05986 [98 AD3d 631] |
| August 15, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Alfred McCune, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and ShulamitRosenblum Nemec of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chun, J.),rendered November 10, 2009, convicting him of murder in the second degree and criminalpossession of a weapon in the second degree (two counts), upon a jury verdict, and imposingsentence.
Ordered that the judgment is reversed, on the law, and the matter is remitted to the SupremeCourt, Kings County, for a new trial.
After an argument with the decedent, the defendant allegedly shot and killed the decedent ina parking lot in March 2008. A witness testified before the grand jury that he had witnessed theshooting and identified the defendant as the perpetrator. However, prior to trial, the witnessindicated that he was unwilling to testify because of alleged threats by the defendant's friends andfamily members. The People sought an order finding the witness "unavailable," therebypermitting them to introduce the witness's grand jury testimony and a statement he made to thepolice in their case-in-chief.
During the trial, the Supreme Court issued a material witness order for the subject witness.The witness was brought to court, and he testified that he did not remember the incident inquestion. He also testified, in essence, that he was afraid to testify because of the threats madeagainst him by the defendant's friends and family. The Supreme Court determined that thewitness was unavailable.
The purpose of a Sirois hearing (see Matter of Holtzman v Hellenbrand, 92AD2d 405 [1983]; People v Sirois, 92 AD2d 618 [1983]) is "to determine whether thedefendant has procured a witness's absence or unavailability through his own misconduct, andthereby forfeited any hearsay or Confrontation Clause objections to admitting the witness'sout-of-court statements" (Cotto v Herbert, 331 F3d 217, 225-226 [2003]; see People vGeraci, 85 NY2d 359, 365-366 [1995]). At a Sirois hearing, the People bear theburden of establishing, by clear and convincing evidence, that the defendant has procured thewitness's absence or unavailability (see People v Geraci, 85 NY2d at 367).[*2]
"Criminal defendants have a statutory and constitutionalright to be present at all material stages of trial" (People v Spotford, 85 NY2d 593, 596[1995]; see US Const 6th, 14th Amends; NY Const, art I, § 6; CPL 260.20;Kentucky v Stincer, 482 US 730, 745 [1987]; People v Turaine, 78 NY2d 871,872 [1991]). Even where a "defendant is not actually confronting witnesses or evidence againsthim, he has a due process right 'to be present in his own person whenever his presence has arelation, reasonably substantial, to the fullness of his opportunity to defend against the charge' "(Kentucky v Stincer, 482 US at 745, quoting Snyder v Massachusetts, 291 US 97,105-106 [1934]; see People v Dokes, 79 NY2d 656, 659 [1992]). Further, "[p]roceedingswhere testimony is received are material stages of the trial because defendant's presence isnecessary so that he or she may confront adverse witnesses and advise counsel of anyinconsistencies, errors or falsehoods in their testimony" (People v Turaine, 78 NY2d at872). However, where the defendant's presence would be "useless, or the benefit but a shadow"(Kentucky v Stincer, 482 US at 745 [internal quotation marks omitted]), due process doesnot require his presence. "Thus, a defendant is guaranteed the right to be present at any stage ofthe criminal proceeding that is critical to its outcome if his presence would contribute to thefairness of the procedure" (id. at 745).
During a Sirois hearing, testimony is heard that could possibly lay the foundation forthe introduction into evidence at a defendant's trial of a witness's prior statements, includinggrand jury testimony, rather than live testimony from the witness that is subject tocross-examination. Accordingly, a defendant's absence at a Sirois hearing has asubstantial effect on his ability to defend the charges against him and, thus, a Siroishearing constitutes a material stage of the trial (see Kentucky v Stincer, 482 US at745-746; Snyder v Massachusetts, 291 US at 105-106; People v Spotford, 85NY2d at 596; People v Turaine, 78 NY2d at 872; People v Dokes, 79 NY2d at659).
Here, the Supreme Court excluded the defendant during the portion of the Siroishearing in which the witness at issue testified in detail about threats and intimidation madeagainst him. Preliminarily, we reject the characterization of the proceeding during which suchtestimony was received as something other than a Sirois hearing. The contention that thewitness's testimony was taken solely on the issue of whether he should be held as a materialwitness is without merit. The purpose of the subject witness's testimony about threats andintimidation made against him was clearly to determine whether the defendant procured the"witness's absence or unavailability through his own misconduct" (Cotto v Herbert, 331F3d at 225; see People v Geraci, 85 NY2d at 365-366).
Moreover, although the defendant was present during the testimony of the other twoSirois hearing witnesses, both of those witnesses provided only hearsay testimony aboutwhat the subject witness allegedly told them regarding the threats and intimidation. As such, thedefendant's presence in the courtroom during the other two witnesses' testimony did not cure theerror in excluding him from the courtroom during the subject witness's testimony.
Where a "defendant was absent during a material part of his trial, harmless error analysis isnot appropriate" (People v Mehmedi, 69 NY2d 759, 760 [1987]; see People vCrimmins, 36 NY2d 230, 238 [1975]; People v Dini, 292 AD2d 631 [2002];People v Turaine, 78 NY2d 871 [1991]; People v Chichester, 197 AD2d 699, 700[1993]; People v Boyd, 166 AD2d 659 [1990]).
Accordingly, the judgment must be reversed and the matter remitted to the Supreme Court,Kings County, for a new trial.
In light of our determination, the defendant's remaining contentions are academic. Balkin,J.P., Dickerson, Belen and Cohen, JJ., concur.