People v. Serrano

• Decision Date: 30 May 1996
• Citation: People v. Serrano, 644 N.Y.S.2d 162, 227 A.D.2d 352 (N.Y. App. Div. 1996)
• Parties: The PEOPLE of the State of New York, Respondent, v. Linton SERRANO, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 162

644 N.Y.S.2d 162

227 A.D.2d 352

The PEOPLE of the State of New York, Respondent, v. Linton SERRANO, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

May 30, 1996.

James Gibbons, for Respondent.

Elizabeth Guggenheimer, for Defendant-Appellant.

Before MILONAS, J.P., and ROSENBERGER, KUPFERMAN, WILLIAMS and MAZZARELLI, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Allen Alpert, J.), rendered February 6, 1992, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, unanimously affirmed.

The main prosecution witness's Grand Jury testimony, which implicated defendant as the person who shot the victim, was properly admitted on the People's direct case where, after a mid-trial evidentiary hearing (see, United States v. Mastrangelo, 2nd Cir., 693 F.2d 269, 272-273, cert. denied 467 U.S. 1204, 104 S.Ct. 2385, 81 L.Ed.2d 343), the People proved by clear and convincing evidence that defendant's misconduct, or at least that in which he acquiesced, caused that witness to recant his identification of defendant at the trial (see, People v. Geraci, 85 N.Y.2d 359, 625 N.Y.S.2d 469, 649 N.E.2d 817). Notwithstanding the witness's assertions that he did not consider the communications as threats, the circumstantial proof established intimidation by defendant himself and by persons acting at defendan...