Opinion
May 30, 1996
Appeal from the Supreme Court, New York County (Allen Alpert, J.).
The main prosecution witness's Grand Jury testimony, which implicated defendant as the person who shot the victim, was properly admitted on the People's direct case where, after a mid-trial evidentiary hearing ( see, United States v Mastrangelo, 693 F.2d 269, 272-273, cert denied 467 U.S. 1204), the People proved by clear and convincing evidence that defendant's misconduct, or at least that in which he acquiesced, caused that witness to recant his identification of defendant at the trial ( see, People v. Geraci, 85 N.Y.2d 359). Notwithstanding the witness's assertions that he did not consider the communications as threats, the circumstantial proof established intimidation by defendant himself and by persons acting at defendant's behest. The hearing court properly concluded that the witness's incredible disclaimers of intimidation actually reinforced the People's position.
Having failed to raise any objections at trial, defendant's challenges to the court's instructions on reasonable doubt and its response to a note from a juror are unpreserved, and we decline to review them in the interest of justice.
We perceive no abuse of discretion in sentencing.
Concur — Milonas, J.P., Rosenberger, Kupferman, Williams and Mazzarelli, JJ.