| People v Bryson |
| 2012 NY Slip Op 08627 [101 AD3d 478] |
| December 13, 2012 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v MalikBryson, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Christopher J. Blira-Koessler of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Michael A. Gross, J.), rendered December 16,2008, convicting defendant, after a jury trial, of criminal possession of a weapon in the thirddegree, and sentencing him to a term of seven years, unanimously affirmed.
At a Sirois hearing (Matter of Holtzman v Hellenbrand, 92 AD2d 405[1983]), the People established, by clear and convincing evidence, that defendant caused awitness's unavailability by making threats. Accordingly, defendant forfeited his right to confrontthis witness, whose grand jury testimony was properly received in evidence (see People vCotto, 92 NY2d 68 [1998]; People v Geraci, 85 NY2d 359 [1995]). There was ampleproof of the identities of the participants in recorded phone conversations. To the extent thatdefendant's threats to the witness were implied threats, the implication was unmistakable.Furthermore, it can be readily inferred that the witness's failure to testify was caused by thethreats.
The court properly exercised its discretion in admitting expert testimony regarding gangs(see generally People v Lee, 96 NY2d 157, 162 [2001]). Regardless of whether theunderlying charges were gang-related, expert testimony was necessary to explain words andphrases that defendant used in phone conversations (see e.g. People v Boyd, 164AD2d 800, 803 [1st Dept 1990], lv denied 77 NY2d 904 [1991]). This testimony washighly probative, and was beyond the knowledge of the typical juror. The expert was sufficientlyqualified to give this testimony, based on his practical experience, and he did not convey anyhearsay to the jury.
The court properly declined to give missing witness charges as to three uncalled witnesses.Defendant did not establish that these persons were under the People's control for purposes of amissing witness charge, or that they could offer material, noncumulative testimony (seePeople v Gonzalez, 68 NY2d 424 [1986]).
The record does not establish that defendant's sentence was based on any improper criteria,and we perceive no basis for reducing the sentence.[*2]
We have considered and rejected defendant's remainingclaims. Concur—Gonzalez, P.J., Mazzarelli, Acosta and Román, JJ.