(concurring). I agree with the majority’s conclusion that the record supports the affirmed finding that defendant procured the witness’s unavailability through the first day of the Sirois hearing. However, the situation changed overnight when the witness appeared in court and asserted her Fifth Amendment privilege against self-incrimination. I write separately because I believe that the trial court failed to focus fully on the relevant issue once she was physically present— whether the witness’s refusal to testify was due to defendant’s misconduct.
As the majority relates, defendant and his mother plainly set about to prevent the witness from coming to court. Rarely will we have tape-recorded conversations laying out such a roadmap of a campaign of threats and pleas designed to induce a witness to absent herself from trial. However, I am concerned about other aspects of this case. A prosecutor may very well be content with relying on the known, favorable, prior-recorded testimony of an unsavory witness. A defendant’s vaunted constitutional right of confrontation can and should be protected in such instances by the vigilance of the trial court.
The purpose of the Sirois hearing is to ensure that statements untested by cross-examination will be admitted “only *226where the requisite link between the defendant’s misconduct and the witness’s silence has been established” (People v Johnson, 93 NY2d 254, 258 [1999]). Here, by contrast, virtually the entire hearing was devoted to the issue of defendant’s responsibility for the witness’s physical unavailability. Once she actually appeared, rendering the attempt to keep her away from trial unsuccessful, the focus of the court’s inquiry should have shifted. At that point, the prosecutor represented that the witness — a subject of open warrants — had been arrested the night before in a highly intoxicated condition. A court presented with this dramatic turn of events might well be behooved to inquire more deeply into the reason behind the witness’s refusal to testify, including any basis for her invocation of the Fifth Amendment.
Instead, here, the court made only a brief inquiry of the witness’s counsel, who represented that the witness intended to assert her Fifth Amendment privilege. Somewhat to the contrary, he also related that the witness had made clear that she would not testify regardless of whether the People offered her immunity with respect to her testimony at the hearing. He further expressed that he was having some difficulty explaining the situation to her, in light of the fact that she already had transactional immunity for the underlying charges, and noted that it was a “very chaotic” and “stressful” atmosphere.
Without making any direct inquiry of the witness, the court determined that her physical presence was “moot” and found her unavailable based on her refusal to testify. The court held that defendant had “pressured the witness’s unavailability up to today through threats and chicanery.” Upon this record, the Appellate Division found that the People had presented clear and convincing evidence that defendant and his mother had “caused the witness to be unavailable to testify at trial” (100 AD3d 1473, 1474 [4th Dept 2012]).
Before imposing a forfeiture of a defendant’s fundamental right to confrontation, the trial court should make certain that the penalty is warranted (see People v Maher, 89 NY2d 456, 461-462 [1997]). However, under the circumstances of this case, where the evidence of witness tampering was overwhelming and there was apparently no valid basis for invoking the privilege against self-incrimination, the satisfaction of Johnson’s requirement of a nexus between the defendant’s misconduct and the witness’s silence is implicit.
*227Judges Graffeo, Read, Smith, Pigott and Rivera concur with Judge Abdus-Salaam; Chief Judge Lippman concurs in result in an opinion.Order affirmed.