SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
April 24, 2009
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
JEREMY MILLER, DEFENDANT-APPELLANT.
Appeal from a judgment of the Erie County Court (Michael F. Pietruszka, J.), rendered January 14, 2008. The judgment convicted defendant, upon a jury verdict, of murder in the second degree, criminal possession of a weapon in the second degree and making a punishable false written statement.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
PRESENT: HURLBUTT, J.P., MARTOCHE, CENTRA, PINE, AND GORSKI, JJ.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
On appeal from a judgment convicting him of, inter alia, murder in the second degree (Penal Law § 125.25 ), defendant contends that County Court erred in admitting in evidence the grand jury testimony and out-of-court statements of two witnesses following a Sirois hearing (see Matter of Holtzman v Hellenbrand, 92 AD2d 405). We reject that contention. The People established that the witnesses were unavailable based on the misconduct of individuals acting on defendant's behalf, with defendant's acquiescence (see People v Major, 251 AD2d 999, lv denied 92 NY2d 927). Indeed, we further note that the People presented circumstantial evidence that threats made to the witnesses were in fact made at defendant's request (see People v Washington, 34 AD3d 1193). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence with respect to the murder count (see generally People v Bleakley, 69 NY2d 490, 495). Contrary to defendant's contention, the People presented evidence establishing the elements of identity and intent with respect to that count (see People v Nieves, 15 AD3d 868; People v Pagan, 12 AD3d 1143, lv denied 4 NY3d 766). We have considered defendant's remaining contentions and conclude that they are without merit.
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