| People v Ali |
| 2014 NY Slip Op 09143 [123 AD3d 1137] |
| December 31, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Intaquab Ali, Appellant. |
Raymond L. Colón, New York, N.Y., for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, and Jill A. Gross Marks of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Erlbaum, J.), rendered May 8, 2009, convicting him of attempted murder in the seconddegree, assault in the first degree, aggravated criminal contempt, criminal possession of aweapon in the fourth degree, and endangering the welfare of a child, upon a jury verdict,and imposing sentence.
Ordered that the judgment is affirmed.
At trial, the People's evidence consisted primarily of the complainant's grand jurytestimony and other out-of-court statements she made. The defendant contends that theSupreme Court erred in allowing the People to introduce these out-of-court statementsinto evidence on their direct case.
In a criminal case, the out-of-court statements of a witness, including his or her grandjury testimony, may be admitted as direct evidence at trial where, inter alia, the witness isunavailable to testify and proof establishes that the witness's unavailability was procuredby intentional misconduct on the part of the defendant (see People v Geraci, 85NY2d 359, 366 [1995]; see also Giles v California, 554 US 353 [2008]; People v Smart, 23 NY3d213 [2014]). Circumstantial evidence may be used to establish that a witness'sunavailability was procured by the defendant (see People v Geraci, 85 NY2d at369). However, the cumulative evidence and the inferences that logically flow therefrommust be sufficient to support a determination, under the clear and convincing evidencestandard, that the defendant either was responsible for, or acquiesced in, the conduct thatrendered the witness unavailable for trial (see id. at 370).
Here, the Supreme Court properly determined, after a Sirois hearing (seePeople v Sirois, 92 AD2d 618 [1983]; Matter of Holtzman v Hellenbrand, 92AD2d 405 [1983]), that the People presented clear and convincing evidence that thedefendant's intentional misconduct caused the complainant to be unavailable to testify atthe trial. Accordingly, the People were properly allowed to use the complainant's grandjury testimony and other out-of-court statements as part of their direct case at trial(see People v Geraci, 85 NY2d at 362).
The Supreme Court also properly denied the defendant's Batson application(see Batson v Kentucky, 476 US 79 [1986]), as the defendant failed to make aprima facie showing of discrimination based [*2]on theprosecutor's exercise of a peremptory challenge to exclude a prospective juror whom thedefendant presumed, because of the prospective juror's appearance, was Muslim (see People v Bridgeforth, 119AD3d 600 [2014]; People vMohabir, 111 AD3d 851, 851-852 [2013]; People v Cosme, 110 AD3d 1096 [2013]; People v Cuesta, 103 AD3d913, 914 [2013]).
The Supreme Court properly denied that branch of the defendant's posttrial motionwhich was to set aside the verdict pursuant to CPL 330.30 (3) based on newly discoveredevidence, which evidence consisted of an affidavit of the complainant relating to theissue addressed at the Sirois hearing. The defendant failed to establish that theevidence could not have been discovered before trial with due diligence and, in anyevent, that it was of such a character as to create a probability that, had it been receivedin evidence, the verdict would have been more favorable to the defendant (seeCPL 330.30 [3]; People v Salemi, 309 NY 208 [1955]; People v Larios, 25 AD3d569, 570 [2006]; People vWaller, 4 AD3d 440, 441 [2004]). Rivera, J.P., Hinds-Radix, Duffy and LaSalle,JJ., concur.