Opinion
Argued April 20, 2001.
June 4, 2001
Appeals by the defendant from (1) a judgment of the Supreme Court, Kings County (Aiello, J.), rendered April 24, 1997, convicting him of murder in the second degree, assault in the first degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence, and (2) a resentence of the same court imposed May 7, 1997, upon the defendant's convictions of assault in the first degree and criminal possession of a weapon in the second degree.
Lynn W. L. Fahey, New York, N.Y. (Warren S. Landau of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Seth M. Lieberman of counsel), for respondent.
Before: CORNELIUS J. O'BRIEN, J.P., WILLIAM D. FRIEDMANN SANDRA J. FEUERSTEIN BARRY A. COZIER, JJ.
ORDERED that the judgment is reversed, on the law, the resentence is vacated, and a new trial is ordered.
The defendant's contention that the evidence was legally insufficient to establish his guilt on the charge of assault in the first degree is unpreserved for appellate review (see, CPL 470.05; People v. Gray, 86 N.Y.2d 10; People v. Udzinski, 146 A.D.2d 245). In any event, viewing the evidence in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. The complainant, who was shot at close range in his buttock and left thigh and sustained a pelvic fracture and perirectal and bladder neck hematomas, suffered "serious physical injury" (Penal Law § 10.00; see, People v. Palmer, 197 A.D.2d 712; People v. Staunton, 190 A.D.2d 703).
However, a new trial is required because of an erroneous evidentiary ruling by the Supreme Court. Following a pretrial Wade hearing (see, United States v. Wade, 388 U.S. 218), the Supreme Court suppressed evidence of a lineup identification of the defendant by the complainant on the ground that the lineup procedure was unduly suggestive. Thereafter, during the trial, the Supreme Court held a Sirois hearing (see, Matter of Holtzman v. Hellenbrand, 92 A.D.2d 405), and determined that the complainant had been rendered unavailable to testify at trial due to direct or indirect threats by the defendant. Notwithstanding its previous suppression ruling, the Supreme Court permitted the People to introduce into evidence the Grand Jury testimony and audiotaped interviews of the complainant referring to the lineup identification of the defendant. The detective who conducted the lineup was also permitted to testify concerning the lineup identification procedure. This was error.
Generally, where a defendant has procured the unavailability of a witness through violence, threats, or chicanery, he may not assert either the constitutional right of confrontation or evidentiary rules against the admission of hearsay to prevent the introduction into evidence of the witness's out-of-court declaration (see, People v. Geraci, 85 N.Y.2d 359, 365-366). However, since the Supreme Court determined that the lineup identification resulted from an unduly suggestive procedure, evidence of that identification should not have been admitted at trial, regardless of whether the complainant was unavailable to testify. That a witness may have been rendered unavailable due to a defendant's threats or intimidation does not permit the introduction into evidence of a prior identification by that witness which was the product of impermissibly suggestive circumstances which offend due process (see, People v. Cotto, 92 N.Y.2d 68). Accordingly, since the error was not harmless, we reverse and grant a new trial.
The defendant's remaining contentions are without merit.
O'BRIEN, J.P., FRIEDMANN, FEUERSTEIN and COZIER, JJ., concur.