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).

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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