People v. Miller

Appeal from a judgment of the Erie County Court (Michael F. Pietruszka, J.), rendered January 14, 2008. The judgment convicted defendant, upon a jury verdict, of murder in the second degree, criminal possession of a weapon in the second degree and making a punishable false written statement.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him of, inter alia, murder in the second degree (Penal Law § 125.25 [1]), defendant contends that County Court erred in admitting in evidence the grand jury testimony and out-of-court statements of two witnesses following a Sirois hearing (see Matter of Holtzman v Hellenbrand, 92 AD2d 405 [1983]). We reject that contention. The People established that the witnesses were unavailable based on the misconduct of individuals acting on defendant’s behalf, with defendant’s acquiescence (see People v Major, 251 AD2d 999 [1998], lv denied 92 NY2d 927 [1998]). Indeed, we further note that the People presented circumstantial evidence that threats made to the witnesses were in fact made at defendant’s request (see People v Washington, 34 AD3d 1193 [2006]). Viewing the evidence in light of the elements of the

*1430crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence with respect to the murder count (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Contrary to defendant’s contention, the People presented evidence establishing the elements of identity and intent with respect to that count (see People v Nieves, 15 AD3d 868 [2005]; People v Pagan, 12 AD3d 1143 [2004], lv denied 4 NY3d 766 [2005]). We have considered defendant’s remaining contentions and conclude that they are without merit. Present—Hurlbutt, J.E, Martoche, Centra, Pine and Gorski, JJ.