People v. Geraci

• Decision Date: 28 March 1995
• Citation: 85 N.Y.2d 359,625 N.Y.S.2d 469,649 N.E.2d 817
• Parties: , 649 N.E.2d 817, 63 USLW 2630 The PEOPLE of the State of New York, Respondent, v. Sammy GERACI, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 469

625 N.Y.S.2d 469

85 N.Y.2d 359, 649 N.E.2d 817, 63 USLW 2630

The PEOPLE of the State of New York, Respondent, v. Sammy GERACI, Appellant.

Court of Appeals of New York.

Argued Feb. 7, 1995.

Decided March 28, 1995.

Flamhaft Levy Kamins & Hirsch, Brooklyn (Harold L. Levy and Barry Kamins, of counsel), for appellant.

Charles J. Hynes, Dist. Atty. of Kings County, Brooklyn (Roseann B. MacKechnie and Jane S. Meyers, of counsel), for respondent.

OPINION OF THE COURT

TITONE, Judge.

Defendant was convicted of first degree manslaughter and two counts of first degree assault, primarily on the basis of an eyewitness's Grand Jury testimony, which was admitted over vigorous defense objection. Although the witness had initially come forward and accused defendant, the witness subsequently left the State and refused to give trial testimony consistent with his earlier story. The issue on this appeal is whether there was sufficient evidence establishing that the witness had been intimidated by defendant to warrant the use of that witness's Grand Jury testimony as part of the People's direct case. Concluding that these facts must be established by no less than "clear and convincing evidence," we hold that the People's proof in this case sufficed to meet that standard.

On April 20, 1990, following a brief argument in a Brooklyn nightclub, an individual named Anthony Granese was fatally stabbed. Although many people were present in the club on the night in question, only one individual, Peter Terranova, came forward and identified defendant as the person who had wielded the knife. Terranova, who testified before the Grand Jury, stated that the incident had begun with a shoving match and had ended when defendant pulled a knife out of his waistband and stabbed Granese in the chest. Terranova also stated that he saw defendant stab another individual, Rocky Giamportone. Giamportone himself was unable to identify the person who stabbed him.

Immediately after the incident, some of the club patrons attempted to aid Granese while others moved outside. According to Terranova, defendant also ran outside, was met by his brother, Frank Geraci, and the two men sped away in a white car. Some of the club patrons who had moved outside attempted to chase the car, throwing objects at it. One of those patrons later testified that he saw another of defendant's brothers, Paul Geraci, fire a gun into the air, possibly wounding Anthony Gallo, another patron.

Defendant was indicted principally on the basis of Terranova's Grand Jury testimony. However, shortly before the trial was scheduled to begin, Terranova left his job and, without notifying his employer or his family, moved out of the State. After making contact with Terranova and learning that he did not wish to testify against defendant at trial, the prosecutor successfully sought a Sirois hearing ¹ to establish the cause of Terranova's change of heart and to obtain an advance ruling as to the admissibility of Terranova's Grand Jury testimony.

At the hearing, which was commenced on March 16, 1992, two police investigators testified for the People. According to these investigators, Terranova had given a detailed oral statement about the night of the stabbing and had subsequently given a sworn statement to an Assistant District Attorney. Although he had also met with the officers more than once before he gave his Grand Jury testimony, Terranova had never voiced any reluctance to testify.

Soon after the Grand Jury indictment was handed up, Terranova told an investigating officer that defendant, who was at liberty, approached him and said something like: "You were there that night; I want you to come down to my lawyer's with me." As the date for the trial drew nearer, the investigating officers learned from Terranova's mother that she had not seen her son in several months and did not know his whereabouts.

Terranova subsequently called the investigators from Florida and told them: "they showed me my testimony, they showed [or shoved] it in my face." He also asked the officer how "they found out about me" and stated that someone from the police or the District Attorney's office "ratted on me." Terranova expressed fear for himself and his family and told the officer that he would not be available for trial "if this is what it's going to take to stay alive * * * and keep them away from [his] family." He stated: "I know for sure I'm gonna have problems with it down the road if I testify * * *. But I don't know if I'm gonna have problems with him the other way." While he said he "hate[d] him" and wanted "to see him go to jail," Terranova stated that he would not repeat the story he told the Grand Jury if he were required to testify at defendant's trial.

On March 5, 1992, Terranova appeared in New York pursuant to a material witness order. He met with police investigators at that time and identified a redacted police report as the document that he had been "showed [or shoved]" in his face. Terranova also told an investigator that a friend, whom he refused to identify, had intervened with the people who were coming "to break his legs." At a subsequent meeting with investigators, Terranova stated that a friend of his had talked with defendant's uncle in Harlem and that, as a result, he (Terranova) had received money "from them or from the defense." He stated that he had already received $2,000 and was to receive an additional $250 per week until the trial was over, receiving a final lump-sum payment of $10,000 at the end. During this meeting with investigators, Terranova claimed that he had never seen the stabbing and had, in fact, been outside the club at the time of the incident.

During his own Sirois hearing testimony, Terranova contradicted much of the officers' statements. He denied having been threatened or approached by defendant about changing his testimony and stated that he had previously expressed fear only because of his desire to remain uninvolved in the case and because of his concerns about being prosecuted for perjurious Grand Jury testimony. With respect to the events on April 20, 1990, Terranova denied having seen the stabbing and, in fact, stated that he had been outside the club at the time it occurred.

Finding that Terranova had been "markedly evasive" in his Sirois testimony, the hearing court concluded that "pressures had been brought to bear * * * making him unwilling to testify." Accordingly, the court held that Terranova was "practically unavailable" because of his unwillingness to testify and that the People had satisfactorily established defendant's responsibility for the circumstance. On that basis, the court concluded that Terranova's sworn statements before the Grand Jury could be used as a substitute for his live testimony.

In so ruling, the trial court rejected the defense's contention, based on People v. Banks, 146 Misc.2d 601, 605-607, 551 N.Y.S.2d 1011, that a finding of culpability could not be reached unless the court first determined that the facts excluded all other hypotheses. Instead, the court opted for the standard set forth in People v. Deegan, 69 N.Y.2d 976, 516 N.Y.S.2d 651, 509 N.E.2d 345, for reviewing the sufficiency of Grand Jury evidence in a wholly circumstantial case. Finding that standard to be "more applicable than one imported from cases pertaining to a determination of a defendant's substantive guilt," the court stated that its review would be limited to whether the facts and inferences that logically flow from the evidence establish that Terranova's unavailability was procured by defendant or by someone acting on his behalf. The court noted in an extended footnote, however, that it "would reach the same result even were [it] to analyze the evidence under [a] higher standard * * *, since [it could] exclude by clear and convincing evidence every other reasonable inference" (appellant's appendix, at 406).

Defendant's subsequent jury trial resulted in a guilty verdict. On his appeal from the judgment of conviction, the Appellate Division upheld the trial court's Sirois determination, holding that the People had met their burden of proof under the applicable "clear and convincing" evidence standard. In so ruling, the Appellate Division held that defendant's personal meeting with Terranova, as well as the meeting between defendant's uncle and Terranova's friend, sufficed to satisfy that "clear and convincing evidence" standard, 200 A.D.2d 758, 607 N.Y.S.2d 116.

On this appeal, defendant once again raises the propriety of the People's use of Terranova's Grand Jury testimony as the centerpiece of their case-in-chief. Although he does not dispute the general principle that a witness's Grand Jury testimony may be used in lieu of live testimony under certain circumstances, he contends that the foundation proof in his case fell short of what the law demands. Resolution of this claim requires that we explore the principles and standards that have led other courts to admit the out-of-court statements of witnesses who have become unavailable due to the defendant's act.

As a general rule, the Grand Jury testimony of an unavailable witness is inadmissible as evidence-in-chief (see, People v. Green, 78 N.Y.2d 1029, 576 N.Y.S.2d 75, 581 N.E.2d 1330; People v. Gonzalez, 54 N.Y.2d 729, 442 N.Y.S.2d 980, 426 N.E.2d 474; CPL 670.10). However, the lower courts of this State, as well as the Federal courts, have adopted an exception to this rule where it has been shown that the defendant procured the witness's unavailability through violence, threats or chicanery (see, Matter of Holtzman v. Hellenbrand, 92 A.D.2d 405, 460 N.Y.S.2d 591; United States v. Thai, 29 F.3d 785, 814-815, cert. denied --- U.S. ----, 115 S.Ct. 456, 130 L.Ed.2d 364; United States v. Aguiar, 975 F.2d 45, 47-48; United States v. Potamitis, 739 F.2d 784, 788-789, cert. denied 469 U.S. 918, 105 S.Ct. 297, 83 L.Ed.2d 232; United States v. Mastrangelo, 693 F.2d 269,...