Sirois hearing in New York

2024The People, therefore, requested a Sirois hearing and sought a determination that the witnesses had been made constructively unavailable to testify at trial by threats attributable to defendant, allowing them to introduce at trial statements made by the witnesses that would otherwise constitute inadmissible hearsay ( see generally People v Geraci , 85 NY2d 359, 365-366 [1995]; Matter of Holtzman v Hellenbrand , 92 AD2d 405, 415 [2d Dept 1983]).

2024The People, therefore, requested a Sirois hearing and sought a determination that the witnesses had been made constructively unavailable to testify at trial by threats attributable to defendant, allowing them to introduce at trial statements made by the witnesses that would otherwise constitute inadmissible hearsay ( see generally People v Geraci , 85 NY2d 359, 365-366 [1995]; Matter of Holtzman v Hellenbrand , 92 AD2d 405, 415 [2d Dept 1983]).

2024The People, therefore, requested a Sirois hearing and sought a determination that the witnesses had been made constructively unavailable to testify at trial by threats attributable to defendant, allowing them to introduce at trial statements made by the witnesses that would otherwise constitute inadmissible hearsay ( see generally People v Geraci , 85 NY2d 359, 365-366 [1995]; Matter of Holtzman v Hellenbrand , 92 AD2d 405, 415 [2d Dept 1983]).

2024The People, therefore, requested a Sirois hearing and sought a determination that the witnesses had been made constructively unavailable to testify at trial by threats attributable to defendant, allowing them to introduce at trial statements made by the witnesses that would otherwise constitute inadmissible hearsay ( see generally People v Geraci , 85 NY2d 359, 365-366 [1995]; Matter of Holtzman v Hellenbrand , 92 AD2d 405, 415 [2d Dept 1983]).

2024After conducting a Sirois hearing ( see People v Sirois , 92 AD2d 618 ; Matter of Holtzman v Hellenbrand , 92 AD2d 405 ), the Supreme Court correctly determined that the previously cooperative complainant had been rendered unavailable due to the misconduct of the defendant and thus, properly permitted the People to introduce at trial the complainant's statements to police and the prosecution, his grand jury testimony, and his identification of the defendant at the police lineup ( see People v Cotto , 92 NY2d 68 ; People v Geraci , 85 NY2d 359 ; People v Nibbs , 222 AD3d 883 , 885; People v Eva

2024After conducting a Sirois hearing ( see People v Sirois , 92 AD2d 618 ; Matter of Holtzman v Hellenbrand , 92 AD2d 405 ), the Supreme Court correctly determined that the previously cooperative complainant had been rendered unavailable due to the misconduct of the defendant and thus, properly permitted the People to introduce at trial the complainant's statements to police and the prosecution, his grand jury testimony, and his identification of the defendant at the police lineup ( see People v Cotto , 92 NY2d 68 ; People v Geraci , 85 NY2d 359 ; People v Nibbs , 222 AD3d 883 , 885; People v Eva

2024The Sirois hearing plays the valuable role of sentry, admitting statements not subject to cross-examination only where the requisite link between the defendant's misconduct and the witness's silence has been established" ( People v Robinson , 216 AD3d 1252 , 1253 [3d Dept 2023][internal quotation marks, brackets and citations omitted]; see People v Smart , 23 NY3d 213, 220-221 [2014]; People v Bryant , 200 AD3d 1483, 1490-1491 [3d Dept 2021], appeal dismissed 38 NY3d 1158 [2022]).

2024The Sirois hearing plays the valuable role of sentry, admitting statements not subject to cross-examination only where the requisite link between the defendant's misconduct and the witness's silence has been established" ( People v Robinson , 216 AD3d 1252 , 1253 [3d Dept 2023][internal quotation marks, brackets and citations omitted]; see People v Smart , 23 NY3d 213, 220-221 [2014]; People v Bryant , 200 AD3d 1483, 1490-1491 [3d Dept 2021], appeal dismissed 38 NY3d 1158 [2022]).

2024The court erred in conducting the Sirois hearing without defendant or defense counsel present. "[A] defendant's absence at a Sirois hearing has a substantial effect on [their] ability to [*2]defend the charges against [them] and, thus, a Sirois hearing constitutes a material stage of the trial" ( McCune , 98 AD3d at 632 ; see Phillips , 203 AD3d at 1637 ; People v Williams , 125 AD3d 697, 698 [2d Dept 2015]).

2024The court erred in conducting the Sirois hearing without defendant or defense counsel present. "[A] defendant's absence at a Sirois hearing has a substantial effect on [their] ability to [*2]defend the charges against [them] and, thus, a Sirois hearing constitutes a material stage of the trial" ( McCune , 98 AD3d at 632 ; see Phillips , 203 AD3d at 1637 ; People v Williams , 125 AD3d 697, 698 [2d Dept 2015]).

2019Defendant contends that County Court erred in determining, following a Sirois hearing, that the People presented clear and convincing evidence that defendant "wrongfully made use of his relationship with the victim in order to pressure her to violate her duty to testify" ( People v Jernigan , 41 AD3d 331 , 332 [1st Dept 2007], lv denied 9 NY3d 923 [2007]) and thus erred in permitting the prosecution to use the grand jury testimony of that witness in their direct case ( see generally People v Geraci , 85 NY2d 359, 365-367 [1995]; People v Vernon , 136 AD3d 1276, 1277-1278 [4th Dept 2016], lv de

2019Defendant contends that County Court erred in determining, following a Sirois hearing, that the People presented clear and convincing evidence that defendant "wrongfully made use of his relationship with the victim in order to pressure her to violate her duty to testify" ( People v Jernigan , 41 AD3d 331 , 332 [1st Dept 2007], lv denied 9 NY3d 923 [2007]) and thus erred in permitting the prosecution to use the grand jury testimony of that witness in their direct case ( see generally People v Geraci , 85 NY2d 359, 365-367 [1995]; People v Vernon , 136 AD3d 1276, 1277-1278 [4th Dept 2016], lv de

2024To the extent that the People argue that defendant waived any challenge to his exclusion from the Sirois hearing ( see generally People v Johnson , 93 NY2d 254, 259 [1999]; People v Spotford , 85 NY2d 593, 598-599 [1995]), we conclude that the record does not show, either expressly or implicitly, that defendant voluntarily and intentionally relinquished his known right to be present during the Sirois hearing ( see People v Maull , 218 AD3d 1236, 1239 [4th Dept 2023]; People v Suttell , 109 AD2d 249, 252 [4th Dept 1985], lv denied 66 NY2d 767 [1985]; see generally Johnson v Zerbst , 304 US 458,

2024To the extent that the People argue that defendant waived any challenge to his exclusion from the Sirois hearing ( see generally People v Johnson , 93 NY2d 254, 259 [1999]; People v Spotford , 85 NY2d 593, 598-599 [1995]), we conclude that the record does not show, either expressly or implicitly, that defendant voluntarily and intentionally relinquished his known right to be present during the Sirois hearing ( see People v Maull , 218 AD3d 1236, 1239 [4th Dept 2023]; People v Suttell , 109 AD2d 249, 252 [4th Dept 1985], lv denied 66 NY2d 767 [1985]; see generally Johnson v Zerbst , 304 US 458,

2024After conducting a Sirois hearing ( see People v Sirois , 92 AD2d 618 ; Matter of Holtzman v Hellenbrand , 92 AD2d 405 ), the Supreme Court correctly determined that the previously cooperative complainant had been rendered unavailable due to the misconduct of the defendant and thus, properly permitted the People to introduce at trial the complainant's statements to police and the prosecution, his grand jury testimony, and his identification of the defendant at the police lineup ( see People v Cotto , 92 NY2d 68 ; People v Geraci , 85 NY2d 359 ; People v Nibbs , 222 AD3d 883 , 885; People v Eva

2024After conducting a Sirois hearing ( see People v Sirois , 92 AD2d 618 ; Matter of Holtzman v Hellenbrand , 92 AD2d 405 ), the Supreme Court correctly determined that the previously cooperative complainant had been rendered unavailable due to the misconduct of the defendant and thus, properly permitted the People to introduce at trial the complainant's statements to police and the prosecution, his grand jury testimony, and his identification of the defendant at the police lineup ( see People v Cotto , 92 NY2d 68 ; People v Geraci , 85 NY2d 359 ; People v Nibbs , 222 AD3d 883 , 885; People v Eva

2021The purpose of a Sirois hearing ( see People v Sirois , 92 AD2d 618 ; Matter of Holtzman v Hellenbrand , 92 AD2d 405 ) 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" ( Cotto v Herbert , 331 F3d 217, 225-226 [2d Cir]; see People v Geraci , 85 NY2d 359, 365-366 ).

2021The purpose of a Sirois hearing ( see People v Sirois , 92 AD2d 618 ; Matter of Holtzman v Hellenbrand , 92 AD2d 405 ) 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" ( Cotto v Herbert , 331 F3d 217, 225-226 [2d Cir]; see People v Geraci , 85 NY2d 359, 365-366 ).

2020The People bear the burden of establishing at the Sirois hearing, by clear and convincing evidence, that the defendant engaged in conduct aimed at preventing the witness from testifying and caused that witness's decision not to testify or to plead the Fifth Amendment ( see People v McCune , 98 AD3d 631, 632 ). " Recognizing the surreptitious nature of witness tampering and that a defendant engaging in such conduct will rarely do so openly, resorting instead to subterfuge, the court can rely on and the prosecution can use circumstantial evidence in making the requisite determination'" ( People

2020The People bear the burden of establishing at the Sirois hearing, by clear and convincing evidence, that the defendant engaged in conduct aimed at preventing the witness from testifying and caused that witness's decision not to testify or to plead the Fifth Amendment ( see People v McCune , 98 AD3d 631, 632 ). " Recognizing the surreptitious nature of witness tampering and that a defendant engaging in such conduct will rarely do so openly, resorting instead to subterfuge, the court can rely on and the prosecution can use circumstantial evidence in making the requisite determination'" ( People

2022Such testimony is admissible where, as here, the court conducts a Sirois hearing at which the People "demonstrate by clear and convincing evidence that the defendant engaged in misconduct aimed at least in part at preventing the witness from testifying and that those misdeeds were a significant cause of the witness's decision not to testify" ( People v Smart , 23 NY3d 213, 220 [2014]; see People v Williams [appeal No. 2], 175 AD3d 980 , 981 [4th Dept 2019], lv denied 34 NY3d 1020 [2019]; People v Vernon , 136 AD3d 1276, 1278 [4th Dept 2016], lv denied 27 NY3d 1076 [2016]).

2019Defendant contends that County Court erred in determining, following a Sirois hearing, that the People presented clear and convincing evidence that defendant "wrongfully made use of his relationship with the victim in order to pressure her to violate her duty to testify" ( People v Jernigan , 41 AD3d 331 , 332 [1st Dept 2007], lv denied 9 NY3d 923 [2007]) and thus erred in permitting the prosecution to use the grand jury testimony of that witness in their direct case ( see generally People v Geraci , 85 NY2d 359, 365-367 [1995]; People v Vernon , 136 AD3d 1276, 1277-1278 [4th Dept 2016], lv de

2017The People established by clear and convincing evidence at the Sirois hearing (see People v Sirois, 92 AD2d 618 [1983]; Matter of Holtzman v Hellenbrand, 92 AD2d 405 [1983]), 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 NY2d 68, 73-77 [1998]; People v Geraci, 85 NY2d 359, 366-367 [1995]; People v Byrd, 51 AD3d 267, 273 [2008]).

2017The People established by clear and convincing evidence at the Sirois hearing (see People v Sirois, 92 AD2d 618 [1983]; Matter of Holtzman v Hellenbrand, 92 AD2d 405 [1983]), 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 NY2d 68, 73-77 [1998]; People v Geraci, 85 NY2d 359, 366-367 [1995]; People v Byrd, 51 AD3d 267, 273 [2008]).

2008Contrary to the further contention of defendant, the court did not abuse its discretion in denying his request to use the statement of that witness to the police to impeach the witness’s testimony from the prior trial. “[E]ven a defendant who has tampered with a witness is entitled to a fair trial” and thus may in some circumstances be permitted to introduce the unavailable witness’s out-of-court statement for impeachment purposes (People v Bosier, 6 NY3d 523, 528 [2006]).

2008Contrary to the further contention of defendant, the court did not abuse its discretion in denying his request to use the statement of that witness to the police to impeach the witness’s testimony from the prior trial. “[E]ven a defendant who has tampered with a witness is entitled to a fair trial” and thus may in some circumstances be permitted to introduce the unavailable witness’s out-of-court statement for impeachment purposes (People v Bosier, 6 NY3d 523, 528 [2006]).

2019Following the Sirois hearing, the court properly determined that admission of the witness's out-of-court statements would not violate defendant's right of confrontation because there was clear and convincing evidence that the witness was "unwilling to testify due to the defendant's own conduct, or . . . the actions of others with the defendant's knowing acquiescence" ( People v Dubarry , 25 NY3d 161, 174 [2015] [internal quotation marks omitted]; see also People v Geraci , 85 NY2d 359, 366-67 [1995]).

2019Following the Sirois hearing, the court properly determined that admission of the witness's out-of-court statements would not violate defendant's right of confrontation because there was clear and convincing evidence that the witness was "unwilling to testify due to the defendant's own conduct, or . . . the actions of others with the defendant's knowing acquiescence" ( People v Dubarry , 25 NY3d 161, 174 [2015] [internal quotation marks omitted]; see also People v Geraci , 85 NY2d 359, 366-67 [1995]).

2024Moreover, defendant's submission of written questions for the court to consider at the Sirois hearing cannot be considered a waiver on this record inasmuch as the court expressly stated that it was noting defendant's objection to the procedure and would "preserve [defendant's] position." Ultimately, by precluding defendant and defense counsel from being present at the Sirois hearing, the court improperly deprived defendant of any real ability to confront the adverse witnesses against him or to advise defense counsel of any inconsistencies, errors or falsities in their testimony ( see Turaine ,

2024Moreover, defendant's submission of written questions for the court to consider at the Sirois hearing cannot be considered a waiver on this record inasmuch as the court expressly stated that it was noting defendant's objection to the procedure and would "preserve [defendant's] position." Ultimately, by precluding defendant and defense counsel from being present at the Sirois hearing, the court improperly deprived defendant of any real ability to confront the adverse witnesses against him or to advise defense counsel of any inconsistencies, errors or falsities in their testimony ( see Turaine ,

2015Here, after a Sirois hearing (see People v Sirois, 92 AD2d 618 [1983]; Matter of Holtzman v Hellenbrand, 92 AD2d 405, 415 [1983]), the Supreme Court properly determined that the defendant used his close relationship with his sister to persuade or pressure her into not testifying against him at the retrial (see People v Leggett, 107 AD3d 741 [2013]; People v Jernigan, 41 AD3d 331, 332 [2007]; People v Major, 251 AD2d 999 [1998]).

2015Here, after a Sirois hearing (see People v Sirois, 92 AD2d 618 [1983]; Matter of Holtzman v Hellenbrand, 92 AD2d 405, 415 [1983]), the Supreme Court properly determined that the defendant used his close relationship with his sister to persuade or pressure her into not testifying against him at the retrial (see People v Leggett, 107 AD3d 741 [2013]; People v Jernigan, 41 AD3d 331, 332 [2007]; People v Major, 251 AD2d 999 [1998]).

2016Thus, the affidavit does not constitute evidence discovered since the entry of the judgment (see People v Backus, 129 AD3d 1621, 1625 [2015]).

2016Thus, the affidavit does not constitute evidence discovered since the entry of the judgment (see People v Backus, 129 AD3d 1621, 1625 [2015]).

2017However, given that County Court conducted a Sirois hearing on defendant’s unavailability to testify, during which sufficient evidence of defendant’s breach of the plea agreement was presented, “counsel cannot be faulted for failing to pursue a potentially futile endeavor” (People v Delayo, 52 AD3d 1114, 1116 [2008], lv denied 11 NY3d 787 [2008]; see People v Caban, 5 NY3d 143, 152 [2005]; People v Russell, 143 AD3d 1188, 1190 [2016]).

2017However, given that County Court conducted a Sirois hearing on defendant’s unavailability to testify, during which sufficient evidence of defendant’s breach of the plea agreement was presented, “counsel cannot be faulted for failing to pursue a potentially futile endeavor” (People v Delayo, 52 AD3d 1114, 1116 [2008], lv denied 11 NY3d 787 [2008]; see People v Caban, 5 NY3d 143, 152 [2005]; People v Russell, 143 AD3d 1188, 1190 [2016]).

2024To the extent that the People argue that defendant waived any challenge to his exclusion from the Sirois hearing ( see generally People v Johnson , 93 NY2d 254, 259 [1999]; People v Spotford , 85 NY2d 593, 598-599 [1995]), we conclude that the record does not show, either expressly or implicitly, that defendant voluntarily and intentionally relinquished his known right to be present during the Sirois hearing ( see People v Maull , 218 AD3d 1236, 1239 [4th Dept 2023]; People v Suttell , 109 AD2d 249, 252 [4th Dept 1985], lv denied 66 NY2d 767 [1985]; see generally Johnson v Zerbst , 304 US 458,

2024To the extent that the People argue that defendant waived any challenge to his exclusion from the Sirois hearing ( see generally People v Johnson , 93 NY2d 254, 259 [1999]; People v Spotford , 85 NY2d 593, 598-599 [1995]), we conclude that the record does not show, either expressly or implicitly, that defendant voluntarily and intentionally relinquished his known right to be present during the Sirois hearing ( see People v Maull , 218 AD3d 1236, 1239 [4th Dept 2023]; People v Suttell , 109 AD2d 249, 252 [4th Dept 1985], lv denied 66 NY2d 767 [1985]; see generally Johnson v Zerbst , 304 US 458,

2024The Sirois hearing plays the valuable role of sentry, admitting statements not subject to cross-examination only where the requisite link between the defendant's misconduct and the witness's silence has been established" ( People v Robinson , 216 AD3d 1252 , 1253 [3d Dept 2023][internal quotation marks, brackets and citations omitted]; see People v Smart , 23 NY3d 213, 220-221 [2014]; People v Bryant , 200 AD3d 1483, 1490-1491 [3d Dept 2021], appeal dismissed 38 NY3d 1158 [2022]).

2024The Sirois hearing plays the valuable role of sentry, admitting statements not subject to cross-examination only where the requisite link between the defendant's misconduct and the witness's silence has been established" ( People v Robinson , 216 AD3d 1252 , 1253 [3d Dept 2023][internal quotation marks, brackets and citations omitted]; see People v Smart , 23 NY3d 213, 220-221 [2014]; People v Bryant , 200 AD3d 1483, 1490-1491 [3d Dept 2021], appeal dismissed 38 NY3d 1158 [2022]).

2012Accordingly, 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 (see Kentucky v Stincer, 482 US at 745-746 ; Snyder v Massachusetts, 291 US at 105-106 ; People v Spotford, 85 NY2d at 596; People v Turaine, 78 NY2d at 872 ; People v Dokes, 79 NY2d at 659 ).

2012Accordingly, 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 (see Kentucky v Stincer, 482 US at 745-746 ; Snyder v Massachusetts, 291 US at 105-106 ; People v Spotford, 85 NY2d at 596; People v Turaine, 78 NY2d at 872 ; People v Dokes, 79 NY2d at 659 ).

2024Given the foregoing, we find that "[t][*4]he evidence presented at the Sirois hearing, and inferences that logically flow therefrom, were sufficient to support [Supreme Court's] determination, under the clear and convincing evidence standard, that . . . defendant's misconduct caused the [victim] to be unavailable for purposes of testifying at trial" ( People v Zafor , 161 AD3d 1017 , 1018 [2d Dept 2018] [internal citation omitted], lv denied 31 NY3d 1155 [2018]; see People v Nelson , 156 AD3d 1112, 1117-1118 [3d Dept 2017], lv denied , 31 NY3d 1151 [2018]; People v Brown , 308 AD2d 379, 379 [1

2024Given the foregoing, we find that "[t][*4]he evidence presented at the Sirois hearing, and inferences that logically flow therefrom, were sufficient to support [Supreme Court's] determination, under the clear and convincing evidence standard, that . . . defendant's misconduct caused the [victim] to be unavailable for purposes of testifying at trial" ( People v Zafor , 161 AD3d 1017 , 1018 [2d Dept 2018] [internal citation omitted], lv denied 31 NY3d 1155 [2018]; see People v Nelson , 156 AD3d 1112, 1117-1118 [3d Dept 2017], lv denied , 31 NY3d 1151 [2018]; People v Brown , 308 AD2d 379, 379 [1

2024To the extent that the People argue that defendant waived any challenge to his exclusion from the Sirois hearing ( see generally People v Johnson , 93 NY2d 254, 259 [1999]; People v Spotford , 85 NY2d 593, 598-599 [1995]), we conclude that the record does not show, either expressly or implicitly, that defendant voluntarily and intentionally relinquished his known right to be present during the Sirois hearing ( see People v Maull , 218 AD3d 1236, 1239 [4th Dept 2023]; People v Suttell , 109 AD2d 249, 252 [4th Dept 1985], lv denied 66 NY2d 767 [1985]; see generally Johnson v Zerbst , 304 US 458,

2024To the extent that the People argue that defendant waived any challenge to his exclusion from the Sirois hearing ( see generally People v Johnson , 93 NY2d 254, 259 [1999]; People v Spotford , 85 NY2d 593, 598-599 [1995]), we conclude that the record does not show, either expressly or implicitly, that defendant voluntarily and intentionally relinquished his known right to be present during the Sirois hearing ( see People v Maull , 218 AD3d 1236, 1239 [4th Dept 2023]; People v Suttell , 109 AD2d 249, 252 [4th Dept 1985], lv denied 66 NY2d 767 [1985]; see generally Johnson v Zerbst , 304 US 458,

1999However, all of the State cases involving a Sirois hearing have allowed police investigators to testify to the threats that convinced the intimidated witnesses to refuse to appear in court as related to them by those witnesses (People v Cotto, supra; People v Geraci, 3 supra; People v Delarosa, 218 AD2d 667 ; People v Tuzzio, 201 AD2d 595 , lv denied 83 NY2d 877 ; People v Small, 177 AD2d 669 , lv denied 79 NY2d 953 ; People v Banks, 4 supra; People v Sweeper, 122 Misc 2d 386 ).

1999However, all of the State cases involving a Sirois hearing have allowed police investigators to testify to the threats that convinced the intimidated witnesses to refuse to appear in court as related to them by those witnesses (People v Cotto, supra; People v Geraci, 3 supra; People v Delarosa, 218 AD2d 667 ; People v Tuzzio, 201 AD2d 595 , lv denied 83 NY2d 877 ; People v Small, 177 AD2d 669 , lv denied 79 NY2d 953 ; People v Banks, 4 supra; People v Sweeper, 122 Misc 2d 386 ).