Appeal by the defendant from a judgment of the Supreme Court, Queens County (Eng, J.), rendered May 27, 1997, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
On April 4, 1995, the defendant accosted Oscar Leal on a street in Queens and threatened to shoot him unless he surrendered his valuables. The defendant took a 20-dollar bill and a “Swiss Army” watch from Leal, and walked away. Leal recruited a friend and followed the defendant until he could point him out to two officers in a passing patrol car. The officers apprehended the defendant and found Leal’s Swiss Army watch ¿nd a 20-dollar bill in his pocket.
The defendant’s first three trials ended in mistrials. The record indicates that Leal returned to his native Mexico immediately after testifying at the third trial, and before a mistrial was declared.
Following the third trial, the People requested permission to *506read Leal’s testimony at a subsequent trial, and a hearing was held pursuant to CPL 670.20. The evidence adduced at the hearing established that the People were unable to secure Leal’s attendance notwithstanding a good faith effort to do so. Two detectives sought Leal at his former Queens address, interviewed his neighbors, and finally spoke to his cousin. An Assistant District Attorney (hereinafter ADA) contacted Leal’s former employer, and another ADA, as well as a detective, finally spoke to Leal at his home in Mexico. These officials offered to pay Leal’s expenses to return to New York to testify at a fourth trial, but Leal was emphatic that he would not return. The hearing court determined that, under these circumstances, the People exercised due diligence to secure Leal’s attendance (see, People v Arroyo, 54 NY2d 567, cert denied 456 US 979; see also, Ohio v Roberts, 448 US 56, 74) and, therefore, Leal’s prior sworn testimony could be read to the jury.
The defendant argues that the admission at the fourth trial of Leal’s prior testimony pursuant to CPL 670.20 constituted a violation of his right of confrontation. We disagree.
The statutory procedures set forth in CPL 670.20 were complied with. There is no question that Leal was “unable” to testify at the fourth trial, as that term is defined in CPL 670.10. It was stipulated by the parties that Leal had been in this country as an illegal immigrant, that he returned to Mexico after the third trial, where he was at the time of the fourth trial, and that he had refused to return to New York notwithstanding the People’s offer to reimburse his transportation costs. The police and the District Attorney’s office were diligent in locating Leal and were also diligent in seeking to have him voluntarily return to this country. Contrary to the implication by the dissent, there were no legal means available to compel Leal to return to New York (see, Mancusi v Stubbs, 408 US 204; People v Carracedo, 228 AD2d 199, affd 89 NY2d 1059). A subpoena would have no extra-territorial effect. The procedures set forth in CPL article 640 (Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Proceedings) are not applicable here since Leal was not in United States territory.
In Mancusi v Stubbs (supra, at 212), then Justice Rehnquist, after discussing the methods available to compel the attendance of a witness who is found in another State or who is incarcerated in a Federal or State institution, stated: “There have been, however, no corresponding developments in the area of obtaining witnesses between this country and foreign nations. Upon discovering that [the witness] resided in a *507foreign nation, the State of Tennessee, so far as the record shows, was powerless to compel his attendance at the second trial, either through its own process or through established procedures depending on the voluntary assistance of another government.”
Notably, CPL article 670, traces its origin to section 8 of the 1881 Code of Criminal Procedure, which contained the statutory right of confrontation (there was no such right in the New York Constitution at the time), as well as the exception permitting the use at trial of a written deposition taken by a magistrate if the declarant was unavailable. In People v Qualey (210 NY 202, 206), Chief Judge Bartlett stated: “The constitutionality, however, of that portion of section 8 of the Code of Criminal Procedure which permits the reading of the deposition of a deceased person whose testimony has been taken in the presence of the defendant with an opportunity for cross-examination, has been so frequently affirmed as to be no longer a matter of doubt.”
Thus, CPL article 670, as its predecessor, implements the provisions of the Confrontation Clause of the United States Constitution. In fact, the “due diligence” twice referred to in CPL 670.10 has its basis in the Federal cases requiring “due diligence” in connection with securing the attendance of witnesses to comport with the requirements of the Confrontation Clause. Here, the People exercised due diligence in locating Leal and in seeking his voluntary attendance. There were no legal means for the People to compel Leal to attend the fourth trial.
Further, Leal’s prior testimony was per se reliable because it was on the same subject matter, was taken under oath, was subject to cross-examination, and was adduced pursuant to the rules of evidence. Notably, it is not argued that the cross-examination of that testimony was in any way inadequate (see, People v Arroyo, supra).
We disagree with the dissent’s apparent position that even though all of the requirements of the Confrontation Clause and CPL article 670 have been met, it was still error to permit the use of Leal’s prior testimony since the jury present at the fourth trial was not able to assess Leal’s demeanor. Such a position is contrary to the provisions of CPL article 670.
The defendant’s further argument that the evidence was legally insufficient to support his conviction is unpreserved for appellate review. In any event, viewing the evidence in the light most favorable to the People, we conclude that a rational trier of fact could have found the essential elements of robbery *508in the second degree beyond a reasonable doubt (see, People v Contes, 60 NY2d 620, 621).
Finally, the mere fact that the defendant was tried four times does not, without more, constitute a violation of due process (see, People v Kirby, 92 AD2d 848, 849), and contrary to the defendant’s arguments, dismissal of the indictment was not warranted in the interests of justice (see, People v Bebee, 175 AD2d 250; People v Ortiz, 152 AD2d 755; People v Clayton, 41 AD2d 204; CPL 210.40).
The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Bracken, J. P., Thompson and Sullivan, JJ., concur.