People v. Lewis

—Appeal from a judgment of Steuben County Court (Furfure, J.), entered March 27, 2000, convicting defendant after a jury trial of criminal possession of a controlled substance in the fourth degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is affirmed.

Memorandum: Defendant appeals from two judgments entered following a jury trial on two consolidated indictments, one convicting him of criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09 [1]), and the other convicting him of criminal sale of a controlled substance in the third degree (§ 220.39 [1]) and two counts of criminal possession of a controlled substance in the third degree (§ 220.16 [1]). Contrary to defendant’s contention, County Court properly ruled admissible, following a Sirois hearing (see Matter of Holtzman v Hellenbrand, 92 AD2d 405 [1983]), the sworn statement of a witness who was found to have been intimidated from testifying by threats made or caused to be made by defendant. The evidence at the hearing established that the witness had received a telephone call threatening his family if he testified to the contents of a statement that he previously had given to the police, i.e., that he had purchased cocaine from defendant a few hours before the execution of a search warrant. A copy of the statement had been furnished to defense counsel approximately one hour before the witness received the threatening telephone call. Although defendant, who was free on bail, denied making any such telephone call or causing one to be made, he admitted that his attorney had informed him of the witness’s statement. According due deference to the hearing court’s assessment of credibility (see People v Prochilo, 41 NY2d 759, 761-762 [1977]), we conclude that the court’s determination that defendant had caused the unavailability of the witness is supported by clear and convincing evidence (see People v Geraci, 85 NY2d 359, 367 [1995]). Thus, the court properly determined that defendant was precluded from asserting “the constitutional right of confrontation or the evidentiary rules against the admission of hearsay in order to prevent the admission of the witness’s out-of-court declarations” (id. at 366). Further, “[b]ecause of ‘the inherently surreptitious nature of witness tampering [,]’ [the court properly allowed] circumstantial evidence [to] be used to ‘establish, in whole or in part, that * * * [the] witness’s unavailability was procured by the defendant’ ” (People v Cotto, 92 NY2d 68, 76 [1998], quoting Geraci, 85 NY2d at 369). Here, as in Cotto, “there was well-established motive, opportunity, [and] timing * ** to link defendant to the threats. Requiring specific identification in situations invariably involving surreptitious conduct permits easy evasion of the principle, and sound public policy, that defendants should neither interfere with witnesses nor benefit from such wrongful conduct” (id. at 77 n 1).

We also reject the contention of defendant that he was denied effective assistance of counsel (see generally People v Benevento, 91 NY2d 708, 712-714 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]). In particular, defendant was not denied effective assistance of counsel when, during the Sirois hearing, defense counsel was placed under oath and responded in the negative to the single question whether he had told anyone other than defendant about the subject witness’s statement. Here, unlike in People v Stephens (291 AD2d 841 [2002]), relied on by defendant, the undisputed testimony of defense counsel did not create a conflict between defendant and defense counsel. Further, “the mere fact that counsel was called to testify does not without more establish a material interference with his effective conduct of the defense,” particularly “[g]iven the limited time and nature of his testimony” (United States v Hall, 346 F2d 875, 882 [1965], cert denied 382 US 910 [1965]; see United States v Martinez, 151 F3d 384, 393 [1998], cert denied 525 US 1031, 1085 [1998]; see also People v Brown, 216 AD2d 670, 673 [1995], lv denied 86 NY2d 791 [1995]; cf. People v Berroa, 99 NY2d 134, 138-143 [2002]).

Although the court erred in permitting a police officer to testify to his opinion that defendant was “in charge” during the course of an undercover drug buy because such testimony “usurp [ed] the jury’s fact-finding function” (People v Wright, 283 AD2d 712, 713 [2001], lv denied 96 NY2d 926 [2001]), the error is harmless (see id. at 714; see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]).

We have reviewed defendant’s remaining contentions and conclude that they are without merit.

All concur except Gorski and Lawton, JJ., who dissent and vote to reverse in accordance with the following memorandum.