People v Turner

People v Turner 2016 NY Slip Op 06871 Decided on October 20, 2016 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 20, 2016
Mazzarelli, J.P., Acosta, Richter, Kapnick, Gesmer, JJ.
1967 2812/14

[*1]The People of the State of New York, Respondent,

v

Myrrheleki Turner, Defendant-Appellant.

Gary Greenwald & Partners, P.C., Chester (Gary Greenwald of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Susan Gliner of counsel), for respondent.

Judgment, Supreme Court, New York County (Ruth Pickholz, J.), rendered May 12, 2015, as amended June 12, 2015, convicting defendant, after a jury trial, of attempted murder in the second degree and two counts of criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to an aggregate term of 20 years, unanimously affirmed.

The court properly permitted the People to introduce an eyewitness's grand jury testimony as evidence-in-chief to establish defendant's guilt, as it was "demonstrate[d] by clear and convincing evidence that the defendant, by violence, threats or chicanery, caused [the] witness's unavailability" (People v Cotto, 92 NY2d 68, 75-76 [1998]; see also People v Geraci, 85 NY2d 359 [1995]). There was ample circumstantial evidence (see People v Encarnacion, 87 AD3d 81, 85-89 [1st Dept 2011], lv denied 17 NY3d 952 [2011]), including defendant's recorded phone calls and reasonable interpretations thereof, to support the conclusion that defendant, acting through proxies, influenced the witness to give false trial testimony, thereby rendering her effectively unavailable (see People v White, 4 AD3d 225 [1st Dept 2004], lv denied 3 NY3d 650 [2004]), and that the change in her testimony could only be explained by this unlawful influence.

We have considered and rejected defendant's remaining arguments.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 20, 2016

CLERK