Opinion
2015-00968. Ind. No. 179/13.
08-23-2017
The PEOPLE, etc., respondent, v. Richard WALKER, appellant.
Robert C. Mitchell, Riverhead, NY (Louis E. Mazzola of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, NY (Thomas C. Costello of counsel), for respondent.
Robert C. Mitchell, Riverhead, NY (Louis E. Mazzola of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, NY (Thomas C. Costello of counsel), for respondent.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, and HECTOR D. LaSALLE, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Ambro, J.), rendered December 16, 2014, convicting him of assault in the second degree, strangulation in the second degree, and assault in the third degree, after a nonjury trial, and imposing sentence.
ORDERED that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt of assault in the second degree ( Penal Law § 120.05[1] ; see People v. Lormil, 134 A.D.3d 958, 959, 22 N.Y.S.3d 494 ) and strangulation in the second degree ( Penal Law § 121.12 ; see People v. Haardt, 129 A.D.3d 1322, 1324, 11 N.Y.S.3d 727 ). Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt on those counts was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The People established by clear and convincing evidence at the Sirois hearing (see People v. Sirois, 92 A.D.2d 618, 459 N.Y.S.2d 813 ; Matter of Holtzman v. Hellenbrand, 92 A.D.2d 405, 460 N.Y.S.2d 591 ), that the defendant's misconduct caused the complainant to recant her grand jury testimony and, thus, to become effectively unavailable to testify at trial (see People v. Cotto, 92 N.Y.2d 68, 73–77, 677 N.Y.S.2d 35, 699 N.E.2d 394 ; People v. Geraci, 85 N.Y.2d 359, 366–367, 625 N.Y.S.2d 469, 649 N.E.2d 817 ; People v. Byrd, 51 A.D.3d 267, 273, 855 N.Y.S.2d 505 ). By his misconduct, the defendant forfeited his constitutional right to confront the complainant or to have the evidence of her out-of-court statements excluded on hearsay grounds (see People v. Geraci, 85 N.Y.2d at 367, 625 N.Y.S.2d 469, 649 N.E.2d 817 ). Accordingly, the Supreme Court did not err in permitting the People to introduce into evidence on their direct case the complainant's grand jury testimony and certain other out-of-court statements (see People v. Chestnut, 149 A.D.3d 772, 773, 50 N.Y.S.3d 549 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).