You are here: / / THE PEOPLE DID NOT DEMONSTRATE DEFENDANT PROCURED THE ABSENCE OF A WITNESS;...
,

THE PEOPLE DID NOT DEMONSTRATE DEFENDANT PROCURED THE ABSENCE OF A WITNESS; THEREFORE THE WITNESS’S STATEMENT SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE; ALLOWING THE PEOPLE TO MAKE PEREMPTORY CHALLENGES AFTER THE DEFENSE WAS REVERSIBLE ERROR (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined a witness’s out-of-count statement should not have been admitted because the People did not demonstrate defendant procured the witness’s absence and the failure to follow proper procedure in jury selection was reversible error:

“The purpose of a Sirois hearing is to determine whether the defendant has procured a witness’s absence or unavailability through his own misconduct, and thereby forfeited any hearsay or Confrontation Clause objections to admitting the witness’s out-of-court statements” … . The People must “present legally sufficient evidence of circumstances and events from which a court may properly infer that the defendant, or those at defendant’s direction or acting with defendant’s knowing acquiescence, threatened the witness” … . “At a Sirois hearing, the People bear the burden of establishing, by clear and convincing evidence, that the defendant has procured the witness’s absence or unavailability” … .

Here, the People failed to establish by clear and convincing evidence that the defendant was responsible for procuring a certain witness’s refusal to testify at trial … . Specifically, the People’s evidence did not establish that the defendant controlled the individuals who threatened the witness or that the defendant influenced or persuaded any individual to threaten the witness or his family … .

The Supreme Court committed reversible error when it permitted the People to exercise peremptory challenges to prospective jurors after the defendant and his codefendant exercised peremptory challenges to that same panel of prospective jurors (see CPL 270.15[2] … . This procedure violated “the one persistently protected and enunciated rule of jury selection—that the People make peremptory challenges first, and that they never be permitted to go back and challenge a juror accepted by the defense” … . People v Burgess, 2021 NY Slip Op 01993, Second Dept 3-31-21

The same peremptory challenge issue required reversal in People v Taylor, 2021 NY Slip Op 01998, Second Dept 3-31-21

 

You might also like
Failure to Provide Reason for Denial of Youthful Offender Status Required Remittal
IN THIS SIDEWAIK ICE-AND-SNOW SLIP AND FALL CASE, THE MUNICIPALITY DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE CONDITION, AND THE ABUTTING PROPERTY OWNERS FAILED TO DEMONSTRATE THEY DID NOT CREATE THE CONDITION (SECOND DEPT).
ALTHOUGH PLAINTIFF IN THIS DEFAMATION ACTION WAS ALLOWED TO SUE UNDER A PSEUDONYM, THE TEMPORARY RESTRAINING ORDER PROHIBITING DEFENDANTS FROM REVEALING PLAINTIFF’S IDENTITY TO THIRD PARTIES, INCLUDING WITNESSES AND INVESTIGATORS, WAS AN UNCONSTITUTIONAL PRIOR RESTRAINT OF SPEECH (SECOND DEPT). ​
PLAINTIFF ASSUMED THE RISK OF SLIPPING ON THE BASKETBALL COURT WHICH WAS WET WITH CONDENSATION; PLAINTIFF WAS AWARE OF THE RECURRING CONDITION (SECOND DEPT).
Criteria for Modification of Existing Visitation Arrangement
UNLESS THE PARTIES OPT OUT BY STIPULATION, A CHILD SUPPORT ORDER MAY BE MODIFIED WITHOUT A DEMONSTRATION OF A SUBSTANTIAL CHANGE IN CIRCUMSTANCES IF A PARTY’S INCOME INCREASES BY 15 % OR MORE AND THREE YEARS HAVE PASSED SINCE THE LAST ORDER (SECOND DEPT).
VEHICLE AND TRAFFIC LAW 388 (1), WHICH IMPOSES VICARIOUS LIABILITY ON THE OWNER OF A VEHICLE, DOES NOT PERMIT A NEGLIGENT DRIVER TO SUE THE VEHICLE OWNER FOR THE DRIVER’S OWN NEGLIGENCE (SECOND DEPT).
Defendant Was Subjected to Custodial Interrogation Before Waiving His Right to Remain Silent—Oral Pre-Miranda and Written Post-Miranda Statements Should Have Been Suppressed—Error Deemed Harmless

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE PETITIONER’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE OBJECTIONS... THE JURY NOTE INDICATED THE REQUEST WAS FOR THE TRANSCRIPT OF THE PHONE CALL,...