AD4 order dated November 16, 2012, modifying by reducing the sentence but otherwise affirming the judgment of conviction. Decision below: 100 AD3d 1473, 954 NYS2d 322. Pigott, J., granted leave April 4, 2013.

ISSUES PRESENTED: (1) Whether the court properly allowed the witness’s grand jury testimony into evidence, after a Sirois hearing showing the witness to be unavailable due to the defendant’s misconduct, where the witness took the stand and invoked the 5^th Amendment. (2) Whether the trial court committed a mode-of-proceedings error during deliberations by sending the jury a note during deliberations.

Factual background: After testifying in the grand jury that defendant committed a burglary, "Jane Doe," defendant's girlfriend -- who faced unrelated criminal charges of her own -- absconded. A series of recorded phone calls between the defendant and Doe and defendant and his mother ndicated that defendant was pressuring, threatening, and cajoling Doe to disappear.  Other phone calls, however, reflected defendant's resignation that she would cooperate with authorities. Doe reappeared during the Sirois hearing, although she refused to testify at trial and invoked her Fifth Amendment privilege, notwithstanding a grant of transactional immunity.  The court admitted her grand jury testimony, finding her physical presence irrelevant.

Issue before the Court; Was Doe's grand jury testimony properly admitted, given the record of phone calls but also Doe's appearance at trial?

Held: The Court unanimously held the admission of the grand jury testimony proper, as the "People demonstrated by clear and convincing evidence that defendant committed misconduct and the court drew a permissible record-based inference that defendant's wrongful actions were designed to prevent Doe from testfiying at trial." Both Doe's abscondence and then sudden reappearance when admission of her grand jury testimony seemed inevitable could be attribted to defendant's threats, pleas, and chicanery.

CAL Observes:  This is a surprisingly detailed opinion (19 pages) given that it is unanimous, something of a rarity on today's Court.  Though unamimous in its holding, Judge Lippman's concurrence expresses concern with the trial court's failure to directly inquire into Doe's reason for invoking the Fifth -- which could have been for reasons independent of any pressure exerted by the defendant.  Nonetheless, the "overwhelming" evidence of witness tampering supported the existence of a sufficient nexus between the defendant's misconduct and the witness's silence in this case.  Sidenote: Recorded jailhouse phone calls, obviously of great relevance in cases involving claims of witness tampering, have beome a staple of prosecutions in recent years.  The Court's recent leave grant in People v. Inoa concerns a police detective "interpreting" coded language used by the defendant in a recorded phone call with his co-defendant.