Opinion
Argued September 10, 2001.
October 1, 2001.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Silverman, J.), rendered April 17, 1998, convicting him of assault in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
Arnold Porter, New York, N.Y. (Kerry A. Dziubek of counsel) and Andrew C. Fine, New York, N.Y. (David Crow of counsel), for appellant (one brief filed).
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Adam S. Charnoff of counsel), for respondent.
Before: CORNELIUS J. O'BRIEN, J.P., DANIEL F. LUCIANO, NANCY E. SMITH, STEPHEN G. CRANE, JJ.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the cumulative evidence presented at the Sirois hearing (see, Matter of Holtzman v. Hellenbrand, 92 A.D.2d 405), and the inferences that logically flow therefrom were sufficient to support the Supreme Court's determination, under the clear and convincing evidence standard, that the defendant's misconduct caused the complainant's unavailability to testify at trial (see, People v. Geraci, 85 N.Y.2d 359, 370; cf., People v. Hamilton, 70 N.Y.2d 987). Accordingly, the Supreme Court properly allowed the use of the complainant's Grand Jury testimony as part of its direct case. Furthermore, the complainant's Grand Jury testimony had sufficient indicia of reliability to permit its admission at the trial (see, People v. Cotto, 92 N.Y.2d 68, 78; People v. Tuzzio, 201 A.D.2d 595; People v. Small, 177 A.D.2d 669).
The sentence imposed was not excessive (see, People v. Suitte, 90 A.D.2d 80).
O'BRIEN, J.P., LUCIANO, SMITH and CRANE, JJ., concur.