Opinion
2018–08188 Ind. No. 1568/16
10-13-2021
The PEOPLE, etc., respondent, v. Jorge BURGESS, appellant.
Stacy Eves, Rockville Centre, NY, for appellant. Joyce A. Smith, Acting District Attorney, Mineola, N.Y. (Jason R. Richards and John B. Latella of counsel), for respondent.
Stacy Eves, Rockville Centre, NY, for appellant.
Joyce A. Smith, Acting District Attorney, Mineola, N.Y. (Jason R. Richards and John B. Latella of counsel), for respondent.
REINALDO E. RIVERA, J.P., FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.
DECISION & ORDER ON MOTION
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (William O'Brien, J.), rendered June 12, 2018, convicting him of manslaughter in the second degree and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is reversed, on the law, count 1 of the indictment, charging the defendant with murder in the second degree ( Penal Law § 125.25[1] ), is dismissed, with leave to the People to re-present any appropriate charges to another grand jury (see People v. Gonzalez, 61 N.Y.2d 633, 635, 471 N.Y.S.2d 847, 459 N.E.2d 1285 ), and a new trial is ordered on the counts of the indictment charging the defendant with criminal possession of a weapon in the second degree.
"The purpose of a Sirois hearing is to determine whether the defendant has procured a witness's absence or unavailability through his own misconduct, and thereby forfeited any hearsay or Confrontation Clause objections to admitting the witness's out-of-court statements" ( People v. McCune, 98 A.D.3d 631, 631, 949 N.Y.S.2d 747 [citations and internal quotation marks omitted]; see People v. Sirois, 92 A.D.2d 618, 459 N.Y.S.2d 813 ). The People must "present legally sufficient evidence of circumstances and events from which a court may properly infer that the defendant, or those at defendant's direction or acting with defendant's knowing acquiescence, threatened the witness" ( People v. Dubarry, 25 N.Y.3d 161, 177, 8 N.Y.S.3d 624, 31 N.E.3d 86 ). "At a Sirois hearing, the People bear the burden of establishing, by clear and convincing evidence, that the defendant has procured the witness's absence or unavailability" ( People v. McCune, 98 A.D.3d at 632, 949 N.Y.S.2d 747 ).
Here, the People failed to establish by clear and convincing evidence that the defendant was responsible for procuring a certain witness's refusal to testify at trial (see id. ). Specifically, the People's evidence did not establish that the defendant controlled the individuals who threatened the witness or that the defendant influenced or persuaded any individual to threaten the witness or his family (see People v. Dubarry, 25 N.Y.3d at 176, 8 N.Y.S.3d 624, 31 N.E.3d 86 ). Accordingly, the Supreme Court should not have admitted into evidence that witness's out-of-court statement.
The Supreme Court committed reversible error when it permitted the People to exercise peremptory challenges to prospective jurors after the defendant and his codefendant exercised peremptory challenges to that same panel of prospective jurors (see CPL 270.15[2] ; People v. Nieves, 26 A.D.3d 519, 520, 809 N.Y.S.2d 586 ). This procedure violated "the one persistently protected and enunciated rule of jury selection—that the People make peremptory challenges first, and that they never be permitted to go back and challenge a juror accepted by the defense" ( People v. Alston, 88 N.Y.2d 519, 529, 647 N.Y.S.2d 142, 670 N.E.2d 426 ).
Accordingly, we reverse the judgment of conviction. A new trial is required on the counts of the indictment charging the defendant with criminal possession of a weapon in the second degree. Moreover, since the defendant was convicted of manslaughter in the second degree as a lesser included offense of murder in the second degree, charged in count 1 of the indictment, we dismiss that count of the indictment, without prejudice to the People to re-present any appropriate charges to another grand jury (see People v. Gonzalez, 61 N.Y.2d 633, 635, 471 N.Y.S.2d 847, 459 N.E.2d 1285 ).
In light of our determination, we need not reach the defendant's remaining contention.
RIVERA, J.P., CONNOLLY, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.