Opinion
10-20-2016
The PEOPLE of the State of New York, Respondent, v. Myrrheleki TURNER, Defendant–Appellant.
Gary Greenwald & Partners, P.C., Chester (Gary Greenwald of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Susan Gliner of counsel), for respondent.
Gary Greenwald & Partners, P.C., Chester (Gary Greenwald of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Susan Gliner of counsel), for respondent.
MAZZARELLI, J.P., ACOSTA, RICHTER, KAPNICK, GESMER, JJ.
Judgment, Supreme Court, New York County (Ruth Pickholz, J.), rendered May 12, 2015, as amended June 12, 2015, convicting defendant, after a jury trial, of attempted murder in the second degree and two counts of criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to an aggregate term of 20 years, unanimously affirmed.
The court properly permitted the People to introduce an eyewitness's grand jury testimony as evidence-in-chief to establish defendant's guilt, as it was “demonstrate[d] by clear and convincing evidence that the defendant, by violence, threats or chicanery, caused [the] witness's unavailability” (People v. Cotto, 92 N.Y.2d 68, 75–76, 677 N.Y.S.2d 35, 699 N.E.2d 394 [1998] ; see also People v. Geraci, 85 N.Y.2d 359, 625 N.Y.S.2d 469, 649 N.E.2d 817 [1995] ). There was ample circumstantial evidence (see People v. Encarnacion, 87 A.D.3d 81, 85–89, 926 N.Y.S.2d 446 [1st Dept.2011], lv. denied 17 N.Y.3d 952, 936 N.Y.S.2d 78, 959 N.E.2d 1027 [2011] ), including defendant's recorded phone calls and reasonable interpretations thereof, to support the conclusion that defendant, acting through proxies, influenced the witness to give false trial testimony, thereby rendering her effectively unavailable (see People v.
White, 4 A.D.3d 225, 772 N.Y.S.2d 309 [1st Dept.2004], lv. denied 3 N.Y.3d 650, 782 N.Y.S.2d 421, 816 N.E.2d 211 [2004] ), and that the change in her testimony could only be explained by this unlawful influence. We have considered and rejected defendant's remaining arguments.