People v. Barkley

201 A.D.3d 1362

158 N.Y.S.3d 707 (Mem)

The PEOPLE of the State of New York, Respondent,

v.James BARKLEY, Defendant-Appellant.

1124

KA 16-00127

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: January 28, 2022

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN PORTER OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., PERADOTTO, CARNI, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him after a nonjury trial of assault in the second degree ( Penal Law § 120.05 [2] ). Contrary to defendant's contention, we conclude that the People established a sufficient foundation for the admission in evidence of recordings of telephone calls that defendant made while he was incarcerated (see People v. Harlow , 195 A.D.3d 1505, 1508, 148 N.Y.S.3d 593 [4th Dept. 2021], lv denied 37 N.Y.3d 1027, 153 N.Y.S.3d 422, 175 N.E.3d 447 [2021] ; People v. Williams , 55 A.D.3d 1398, 1399, 864 N.Y.S.2d 611 [4th Dept. 2008], lv denied 11 N.Y.3d 901, 873 N.Y.S.2d 277, 901 N.E.2d 771 [2008] ; People v. Manor , 38 A.D.3d 1257, 1258, 832 N.Y.S.2d 341 [4th Dept. 2007], lv denied 9 N.Y.3d 847, 840 N.Y.S.2d 774, 872 N.E.2d 887 [2007] ). Defendant's further contention, that a different number of compact discs containing recorded jail calls were admitted at trial than at the Sirois hearing (see generally People v. Geraci , 85 N.Y.2d 359, 365, 625 N.Y.S.2d 469, 649 N.E.2d 817 [1995] ), is not preserved for our review inasmuch as defendant failed to object to the admission of the recordings in evidence at trial on that ground (see CPL 470.05 [2] ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).

We reject defendant's further contention that Supreme Court erred in admitting in evidence, as part of the People's case-in-chief, the grand jury testimony of the victim, who stopped cooperating with the prosecution and did not appear for trial. Although the prosecution generally may not use the grand jury testimony of an absent witness on its direct case, New York courts "have adopted an exception to this rule where it has been shown that the defendant procured the witness's unavailability through violence, threats or chicanery" ( Geraci , 85 N.Y.2d at 365, 625 N.Y.S.2d 469, 649 N.E.2d 817 ; see People v. Butler , 148 A.D.3d 1540, 1541, 52 N.Y.S.3d 586 [4th Dept. 2017], lv denied 29 N.Y.3d 1090, 63 N.Y.S.3d 6, 85 N.E.3d 101 [2017] ). Such testimony is admissible where, as here, the court conducts a Sirois hearing at which the People "demonstrate by clear and convincing evidence that the defendant engaged in misconduct aimed at least in part at preventing the witness from testifying and that those misdeeds were a significant cause of the witness's decision not to testify" ( People v. Smart , 23 N.Y.3d 213, 220, 989 N.Y.S.2d 631, 12 N.E.3d 1061 [2014] ; see People v. Williams [appeal No. 2], 175 A.D.3d 980, 981, 108 N.Y.S.3d 584 [4th Dept. 2019], lv denied 34 N.Y.3d 1020, 114 N.Y.S.3d 744, 138 N.E.3d 473 [2019] ; People v. Vernon , 136 A.D.3d 1276, 1278, 25 N.Y.S.3d 755 [4th Dept. 2016], lv denied 27 N.Y.3d 1076, 38 N.Y.S.3d 846, 60 N.E.3d 1212 [2016] ). With respect to defendant's contention that the witness may have refused to testify due to her substance abuse issues or for other reasons and that the court thus erred in concluding that her refusal was due to defendant's actions, we note that "at a hearing held pursuant to Sirois and Geraci , the court may infer the requisite causation from the evidence of the defendant's coercive behavior and the actions taken by the witness in direct response to or within a close temporal proximity to that misconduct" ( Smart , 23 N.Y.3d at 220-221, 989 N.Y.S.2d 631, 12 N.E.3d 1061 ).

With respect to defendant's final contention, we conclude that any error in the admission, pursuant...