Defendant’s Exclusion from a “Sirois” Hearing (Where It Was Determined a Witness Was “Practically Unavailable” Because of Threats Made to the Witness on Behalf of the Defendant) Was Reversible Error

The Second Department reversed defendant's conviction because he was excluded from a “Sirois” hearing where it was determined a witness was “practically unavailable” because of threats made by a person on behalf of the defendant.  The defendant had been allowed to hear the testimony but was not able to participate in the proceedings in any way:

“[A] defendant's absence at a Sirois hearing has a substantial effect on his ability to defend the charges against him and, thus, a Sirois hearing constitutes a material stage of the trial” … . The “[d]efendant was entitled to confront the witness against him at that hearing and also to be present so that he could advise counsel of any errors or falsities in the witness' testimony which could have an impact on guilt or innocence” … . Here, the defendant was not in the courtroom and was not allowed to confer with his attorney during the hearing. Moreover, the fact that the defendant was able to hear the witness's testimony from a holding cell, and that the Supreme Court did not render a decision on the People's application until after argument was heard three days after the hearing, were insufficient safeguards to ensure that the defendant was “afforded the opportunity for meaningful participation to which he was entitled” … . People v Williams, 2015 NY Slip Op 00916, 2nd Dept 2-4-15