| People v Wilson |
| 2014 NY Slip Op 01781 [115 AD3d 891] |
| March 19, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jermaine Wilson, Appellant. |
—[*1] Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andDiane R. Eisner of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Tomei, J.), rendered April 16, 2010, convicting him of murder in the second degree,upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People v Danielson, 9NY3d 342, 349 [2007]), we find that it was legally sufficient to establish thedefendant's guilt of murder in the second degree beyond a reasonable doubt. Moreover,upon our independent review pursuant to CPL 470.15 (5), we are satisfied that theverdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The defendant's contention that the Supreme Court erred in permitting the admissionof certain out-of-court statements by uncalled witnesses is without merit. The evidencepresented at the Sirois hearing (see People v Sirois, 92 AD2d 618 [1983];see also Matter of Holtzman v Hellenbrand, 92 AD2d 405 [1983]), and theinferences that logically flow therefrom, were sufficient to support the Supreme Court'sdetermination, under the clear and convincing evidence standard, that the defendant'smisconduct caused the witnesses' unavailability to testify at trial and, thus, the Peoplewere properly allowed the use of the out-of-court statements as part of their direct case(see People v Cotto, 92 NY2d 68, 87 [1998]; People v Geraci, 85 NY2d359, 368-370 [1995]; People v Oge, 287 AD2d 469 [2001]). Contrary to thedefendant's contention, the People were not obligated to prove, by clear and convincingevidence, that the statements themselves were reliable (see People v Cotto, 92NY2d at 77-78; People v Geraci, 85 NY2d at 368). In any event, the statementswere not "so devoid of reliability as to offend due process" (People v Cotto, 92NY2d at 78).
The Supreme Court erred in declining to give a missing witness charge with respectto the People's failure to call a purported eyewitness to the shooting. However, at trial,inter alia, two other eyewitnesses testified and identified the defendant as the shooter.The error was harmless, [*2]as there was overwhelmingevidence of the defendant's guilt, and no significant probability that the error contributedto the defendant's conviction (see People v Crimmins, 36 NY2d 230, 237 [1975];People v Williams, 99AD3d 955, 956 [2012]; People v Morgan, 228 AD2d 704, 705 [1996]).
The Supreme Court also erred in its instruction to the jury with respect to the jury'sassessment of testimony given by an interested witness. While the Supreme Courtproperly instructed the jury to scrutinize an interested witness's testimony to determinewhether any benefit he or she received affected the truthfulness of his or her testimony,the Supreme Court erred in deviating from that standard charge by including a furtherinstruction which implicitly limited which benefits the jury could consider in scrutinizingthe interested witness's testimony (see People v Jackson, 74 NY2d 787, 790[1989]). However, the error was harmless, as there was overwhelming evidence of thedefendant's guilt, and no significant probability that the error contributed to thedefendant's conviction (see People v Crimmins, 36 NY2d at 241-242; Peoplev Williams, 99 AD3d at 956; People v Hoover, 162 AD2d 710, 712 [1990]).
The defendant's remaining contention is unpreserved for appellate review (seeCPL 470.05 [2]) and we decline to review it in the exercise of our interest of justicejurisdiction (cf. People v Little, 215 AD2d 778 [1995]; People vDebroux, 133 AD2d 231 [1987]). Dickerson, J.P., Chambers, Austin and Sgroi, JJ.,concur.