Opinion
October 27, 1992
Appeal from the Supreme Court, New York County, Leslie Crocker Snyder, J.
The trial court appropriately conducted a pretrial hearing to determine the admissibility on the People's direct case of prior Grand Jury testimony of a witness deceased at the time of trial, upon the People's allegations suggesting a distinct possibility that misconduct of the defendants caused the witness' demise (see, United States v Mastrangelo, 693 F.2d 269, cert denied 467 U.S. 1204). The trial court's crediting of the cooperating informant's testimony, supported by the hearing record, will not be disturbed by this Court (see, People v Prochilo, 41 N.Y.2d 759, 761). We find further that the trial court appropriately applied the clear and convincing evidence standard of proof at the hearing (see, Matter of Holtzman v Hellenbrand, 92 A.D.2d 405, 415). Under this standard, we agree with the trial court's determination that the People proved defendants or one acting in their behalf caused the death of an eyewitness to the shooting spree herein prior to trial, thereby forfeiting their right to confrontation and allowing admission of the prior Grand Jury testimony of the deceased witness on the People's direct case (see, People v Hamilton, 70 N.Y.2d 987).
Viewing the evidence at trial in the light most favorable to the People and giving them the benefit of every reasonable inference (People v Malizia, 62 N.Y.2d 755, cert denied 469 U.S. 932), the jury's determination of defendants' guilt of the crimes charged was supported by overwhelming evidence (see, People v Bleakley, 69 N.Y.2d 490). As for defendant La Torres' effort to portray himself as an unsuspecting occupant of the vehicle from which the shots were fired at Police Officers Rutter and Nivar on the Harlem River Drive, the driver testified that he had seen La Torres, one of the two other occupants in the car, holding a gun on 145th Street and the ballistics evidence showed that two weapons were used to shoot at the officers. Moreover, spent shells recovered from the Drive were shown to have been fired from a gun other than the one used by defendant Rosario to shoot at the police officers. The only reasonable conclusion was that those shots were fired by La Torres. Finally, La Torres' decision to flee with Rosario and the evidence of his complicity in the plot to have the driver killed evidenced his consciousness of guilt.
The record indicates that the trial court duly apprised all parties of noted sleeping and bizarre behavior of a sitting juror and invited, but did not receive, objection to dismissal of that juror as obviously grossly unqualified to continue service. In these circumstances, the trial court properly exercised its discretion in dismissing the unqualified juror without conducting what would be a meaningless inquiry of that juror (see, People v Russell, 112 A.D.2d 451, 453).
The trial court did not abuse its discretion in imposing the sentences herein, lawful under Penal Law § 70.25.
We have reviewed defendants' additional claims of error and find them to be either unpreserved or without merit.
Concur — Sullivan, J.P., Wallach, Kupferman and Ross, JJ.