W. L. Fahey, New York, NY (Ronald Zapata of counsel), for
Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard
Joblove and Diane R. Eisner of counsel), for respondent.
E. CHAMBERS, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY,
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
by the defendant from a judgment of the Supreme Court, Kings
County (Gary, J.), rendered November 24, 2014, convicting him
of criminal possession of a weapon in the second degree, upon
a jury verdict, and imposing sentence.
that the judgment is reversed, on the law, and the matter is
remitted to the Supreme Court, Kings County, for a new trial,
to be preceded by the assignment or retention of new counsel
in accordance herewith.
defendant was charged with murder in the second degree,
manslaughter in the first degree, manslaughter in the second
degree, and criminal possession of a weapon in the second
degree in connection with the fatal shooting of an individual
at a party on April 4, 2010, in Brooklyn. At the trial, the
People's eyewitness denied that she had been at the
party. The People immediately requested a Sirois
hearing (see People v Sirois, 92 A.D.2d 618) to show
that the witness had been threatened into changing her
testimony, and the Supreme Court granted the request for the
hearing over defense counsel's objection.
Sirois hearing, the People's other witnesses
testified that the witness never stated that she was
threatened by anyone. The People submitted recorded phone
calls between the defendant and the witness into evidence.
These conversations contained no threats and no attempts to
prevent the witness from testifying. The witness herself
testified that she had not been threatened by anyone. She
also testified that it was not her idea to move to a hotel
for her own safety, but that she did so at the insistence of
the District Attorney's office. A police detective
confirmed that the witness never requested to be moved to a
hotel for her own safety.
detective also testified that the witness was concerned
because the father of her child was very good friends with
the defendant, and that he would be upset if he found out she
was testifying. An assistant district attorney testified that
the witness was "extremely concerned for her
safety." The witness spoke on the phone to the father of
her child several days before the trial. Both the witness and
the father of her child denied that her testimony was
discussed during that phone call.
assistant district attorney testified that, the day before
the trial began, the witness stated that she had decided not
to testify, because "everyone on Facebook knew she was a
snitch and that one of her best friends just stopped talking
to her because she learned that she was a snitch on this
Supreme Court ruled that the People could admit the
witness's grand jury testimony into evidence. That
testimony identified the defendant as the shooter at the
jury acquitted the defendant of the several homicide charges,
but convicted him of criminal possession of a weapon in the
second degree and, thereafter, the Supreme Court imposed
sentence. During sentencing, counsel for the defendant asked
to be relieved, contending the existence of a conflict of
interest because the defendant had filed a grievance against
him. The court denied the application, without inquiry. The
Sirois hearing, the People were required to
"demonstrate by clear and convincing evidence that the
defendant, by violence, threats or chicanery, caused a
witness's unavailability" (People v Cotto,
92 N.Y.2d 68, 75-76; see People v Geraci, 85 N.Y.2d
359, 366). Here, although the People presented evidence that
the witness was afraid to testify, they failed to meet their
heavy burden of showing that her fear was caused by a threat
made by the defendant (see People v Dubarry, 25
N.Y.3d 161, 177-178; People v Steward, 54 A.D.3d
the circumstances of this case, this error cannot be
considered harmless (see People v Dubarry, 25 N.Y.3d
at 177-178; People v Steward, 54 A.D.3d at 882).
Thus, the judgment must be reversed, and the matter remitted
to the Supreme Court, Kings County, for a new trial (see
People v Dubarry, 25 N.Y.3d at 178; People v
Steward, 54 A.D.3d at 882).
Supreme Court also should not have denied defense
counsel's request to be relieved without first having
made at least some minimal inquiry in light of defense
counsel's statement that the defendant had filed a
grievance against him (see People v Sides, 75 N.Y.2d
822, 825; People v Smith,25 A.D.3d 573, 575). The
failure to do so was error. Thus, upon remittal of the matter
to the Supreme Court, the defendant should ...