| People v Walker |
| 2017 NY Slip Op 06302 [153 AD3d 861] |
| August 23, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Richard Walker, Appellant. |
Robert C. Mitchell, Riverhead, NY (Louis E. Mazzola of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, NY (Thomas C. Costello of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Ambro, J.),rendered December 16, 2014, convicting him of assault in the second degree, strangulation in thesecond degree, and assault in the third degree, after a nonjury trial, and imposing sentence.
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish thedefendant's guilt of assault in the second degree (Penal Law § 120.05 [1]; see People v Lormil, 134 AD3d958, 959 [2015]) and strangulation in the second degree (Penal Law § 121.12;see People v Haardt, 129 AD3d1322, 1324 [2015]). Moreover, upon our independent review pursuant to CPL 470.15 (5),we are satisfied that the verdict of guilt on those counts was not against the weight of theevidence (see People v Romero, 7NY3d 633 [2006]).
The People established by clear and convincing evidence at the Sirois hearing (seePeople v Sirois, 92 AD2d 618 [1983]; Matter of Holtzman v Hellenbrand, 92 AD2d405 [1983]), that the defendant's misconduct caused the complainant to recant her grand jurytestimony and, thus, to become effectively unavailable to testify at trial (see People vCotto, 92 NY2d 68, 73-77 [1998]; People v Geraci, 85 NY2d 359, 366-367 [1995];People v Byrd, 51 AD3d 267,273 [2008]). By his misconduct, the defendant forfeited his constitutional right to confront thecomplainant or to have the evidence of her out-of-court statements excluded on hearsay grounds(see People v Geraci, 85 NY2d at 367). Accordingly, the Supreme Court did not err inpermitting the People to introduce into evidence on their direct case the complainant's grand jurytestimony and certain other out-of-court statements (see People v Chestnut, 149 AD3d 772, 773 [2017]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Balkin, J.P., Austin, Roman and LaSalle, JJ., concur.