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This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 32 

The People &c.,

 Respondent,

 v.

Darius Dubarry,

 Appellant.

Denise A. Corsi, for appellant.

Thomas M. Ross, for respondent.

RIVERA, J.:

This appeal presents the novel question of whether

defendant may be subject to multiple liability for a single

homicide under a "transferred intent" theory, where defendant

kills one victim in the course of attempting to kill someone

else. We conclude that defendant cannot be convicted of depraved

indifference murder and intentional murder on a transferred

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intent theory in a case involving the death of the same person.

Therefore, the trial court erroneously submitted to the jury both

charges in the conjunctive rather than in the alternative. We

also hold that admission into evidence of certain grand jury

statements of a non-testifying witness violated defendant's Sixth

Amendment right to confrontation. The Appellate Division order

should be modified, and a new trial ordered on the intentional

murder, depraved indifference murder, and attempted murder

counts.

I.

 The underlying criminal prosecution of defendant

Darius Dubarry stems from the fatal shooting of a bystander

during a gun fight between defendant and co-defendant Herburtho

Benjamin. At trial, defendant admitted shooting at Benjamin, but

claimed Benjamin was the aggressor and that defendant acted in

self defense. 

According to the testimony presented by the People,

Benjamin and approximately ten men went to a residential building

in Brooklyn, New York, looking for someone who had previously

assaulted one of the men. While they were standing inside the

lobby they saw defendant walk down the staircase. Defendant, a

member of the Lek Lekah Israelites, had just left Sabbath

services when he, in turn, saw the men. After defendant walked

by, someone in the group said, "That's him." Benjamin and the

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others then followed defendant outside, and dispersed on the

street.

Several of the men in the group testified that once

outside they saw defendant in front of the building, and observed

defendant and Benjamin pull out guns and shoot at one another.

The People also submitted video tape footage from the building

depicting the shootout and defendant extending his arm to fire a

gun before he reentered the building. The forensic evidence

established that one of the bullets fired by defendant fatally

struck the victim, who was uninvolved in the events and

innocently standing a few buildings away from the shooting.

Soon after the shooting, defendant left the scene, and

approximately a week later the investigating detectives located

him listed under an assumed name in a hotel in Georgia. 

Defendant was taken to a local Sheriff's Office where he waived

his Miranda rights and provided oral and written statements to

the New York detectives. In these statements defendant explained

that on the day of the shooting he was leaving services when he

saw several men in the lobby. The men then followed him outside

where he was confronted by Benjamin who pointed a gun at him.

Defendant claimed he heard a click, and then a shot. Defendant

then shot back at Benjamin and ran into the building.

In addition to this evidence, the People sought to

present eyewitness testimony of one of the building's residents

who had previously testified before the grand jury that he saw

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defendant fire the initial shot at Benjamin. However, during the

course of the trial the witness refused to testify because of

threats against his family. Outside of the jury's presence the

court held a Sirois hearing to determine whether defendant

procured the witness's refusal by threats or violence.1 

At the hearing, the witness recounted how just the day

before, his brother and sister visited him and told him that they

were "getting hostility around the neighborhood" because he "was

making a statement against the defendants." Specifically, his

brother told him that the Israelites thought the witness was a

"snitch". His sister similarly informed him that someone had

told her that the Israelites suspected the witness of snitching

and that the Israelites were "serious." The witness stated that

his siblings' demeanor during the visit indicated to him that

these were indeed threats.

The witness further informed the court that he was

fearful because his family still lived in the neighborhood where

the shooting occurred, and he thought his brother and sister

would be hurt if he testified. He also said that he had not told

anyone that he had cooperated and he did not even know until that

1 At a Sirois hearing, named after the defendant in the

criminal case considered in Matter of Holtzman v Hellenbrand (92

AD2d 405 [2d Dept 1983]), People v Sirois, the court determines

whether the People have established that defendant's misconduct

induced a witness's unlawful refusal to testify. Where the

People meet their burden, the defendant is "deemed to have waived

any objection to the admissibility of the witness' prior Grand

Jury testimony" (Matter of Holtzman, 92 AD2d at 415). 

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day that the People intended to call him at trial. In response to

the court's question, the witness, who was incarcerated in a

federal detention center on an unrelated matter, claimed that

even if held in contempt, and additional time was added to his

sentence, he would not testify against defendant.

Based on this testimony the court concluded that "these

threats have been made, that the witness believes that if he does

testify concerning the events... his family is in harm's way and

that his refusal to testify is based upon these threats and these

threats solely." The court also determined that it could not

compel the witness to testify because he was serving a federal

sentence. The court then recalled the jurors, and over

defendant's objection, allowed the prosecutor to read the

witness's grand jury testimony into evidence.

According to that testimony, on the day of the shooting

the witness looked out the window of his fifth floor apartment

and saw defendant and a group of people walk out of the building. 

He saw defendant start smoking a cigarette, walk down two steps

and then start shooting. The witness stepped back from the

window. A few minutes later he again looked out, and this time

observed defendant exit the building with one of the Israelites,

and then enter a car and drive away. The witness stated that he

had seen defendant every week in the building and recognized him

as someone who attended the Israelites' services.

Defendant testified on his own behalf, and claimed that

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Benjamin shot first and for no apparent reason. He explained

that he had come into possession of the gun that he used to shoot

at Benjamin from a male member of the Israelites' congregation. 

He stated that on the day of the shooting he was escorting

several female members from the services when this member told

defendant he was going to handle a problem and showed defendant

the gun. Defendant told him to "chill out," took the gun, and

said that they would dispose of it when defendant returned from

escorting the women out of the building. 

Once downstairs defendant saw the men in the lobby and

recognized one of them as a resident from the building. He

claimed that he was in front of the building smoking a cigarette

when the men followed him outside, and as he turned to reenter

the building he heard someone say "Move. Move. Move." When he

turned around again he saw Benjamin pointing a gun at him. He

claimed he did not know Benjamin and that he froze when he saw

the gun. According to defendant, Benjamin pulled the trigger

twice, but the gun failed to fire. When Benjamin fired again

defendant fired several shots back.

Defendant further testified that he had never handled a

gun before the shooting, and did not know what he did with it

afterwards. Defendant described how after the gunfight he

returned to the apartment where services had been held, and

stayed there until he subsequently drove away. Two days later he

went to Georgia, out of fear of Benjamin and others in the group

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who defendant believed were gang members, and so his family would

have time to retain counsel. He further claimed that the

statements made to the detective in Georgia were coerced.

As relevant to this appeal, at the pre-charge

conference and later during discussion of the verdict sheet, the

trial court stated that the intentional murder and depraved

indifference murder were separate crimes and that the jury had to

consider both. Defense counsel also argued during the pre-charge

conference that the evidence was insufficient to establish

depraved indifference murder based on defendant engaging in

mutual combat with Benjamin.

The Court thereafter submitted to the jury in the

conjunctive depraved indifference murder and intentional murder

on a transferred intent theory. In other words, the court

instructed the jury to consider depraved indifference murder and,

irrespective of its verdict on that count, to then consider

intentional murder. Also, the court's instructions on depraved

indifference murder required the jury to find, beyond a

reasonable doubt, that defendant and Benjamin engaged in mutual

combat. The court charged as lesser included offenses to the

murder counts first and second degree manslaughter. The court

also charged the jury on attempted murder in the second degree,

assault in the first degree, and criminal possession of a weapon

in the second degree. The court charged the defense of

justification with respect to intentional murder in the second

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degree, manslaughter in the first degree, attempted murder in the

second degree, and attempted assault in the first degree. 

The jury returned guilty verdicts on depraved

indifference murder (Penal Law § 125.25 [2]), intentional murder

on a transferred intent theory (Penal Law § 125.25 [1]),

attempted murder in the second degree (Penal Law §§ 110.00,

125.25 [1]), and criminal possession of a weapon in the second

degree (Penal Law § 265.03 [1] [b]). Defendant appealed.

The Appellate Division affirmed (People v Dubarry, 107

AD3d 822 [2d Dept 2013]). The court found the case involved more

than one potential victim, thus permitting defendant's

convictions on the murder counts based on defendant's different

states of mind as regards to each victim. The Appellate Division

further concluded the trial court properly admitted the

unavailable witness's grand jury testimony because the People

established by clear and convincing evidence that the witness's

unavailability was procured by defendant's misconduct. The court

rejected the remainder of defendant's claims. A Judge of this

Court granted leave to appeal (22 NY3d 1040).

II.

Defendant claims the trial court violated his due

process rights when it submitted to the jury depraved

indifference murder and intentional murder on a transferred

intent theory in the conjunctive with respect to the same victim. 

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He contends that where the actual and intended victims are

different, conviction on both murder counts unlawfully subjects

him to multiple criminal liability for a single homicide. The

People respond that the convictions should be affirmed because

each murder count requires its own particular culpable mental

state and outcome.

As a threshold matter, we reject the People's argument

that defendant's challenge to the jury instructions is

unpreserved. The record establishes that the trial court

considered depraved indifference and intentional murder as

separate crimes that the jury must independently consider. 

During the charge conference the trial court stated that there is

a "distinct difference in the crimes." Later, in response to

defendant's concerns as to whether the verdict sheet should

direct the jury to consider depraved indifference murder if it

found defendant guilty of intentional murder, the court

responded, "I think they have to. It's a totally different

separate element." These statements, and the court's eventual

submission of the counts in the conjunctive establish the court's

rejection of alternative charges. Thus, defendant's claim is

properly before us on this appeal (CPL 470.05; see People v

Prado, 4 NY3d 725, 726 [2004]). 

On the merits, we agree with defendant that, on the

facts of this case, the transferred intent theory cannot be

employed to convict him twice for the murder of the same victim. 

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We reach this conclusion based on our reading of the Criminal

Procedure Law and the Penal Law, our case law, and the stated

purpose of the transferred intent theory.

We begin our analysis with People v Gallagher, wherein

the Court held that in single homicide cases, intentional and

depraved murder counts must be submitted to the jury in the

alternative (People v Gallagher, 69 NY2d 525 [1987]). In

Gallagher, the trial court denied defense counsel's request to

charge intentional murder and depraved mind murder in the

alternative2 (id. at 528 [1987]). The Court concluded that was

error, holding these counts inconsistent within the meaning of

CPL 300.30(5), "because guilt of one necessarily negates guilt of

the other" (id. at 529). As the Court recognized, a finding of

intentional murder is inconsistent with a finding that the

defendant "unintentionally kill[ed] [the] same victim under

circumstances evincing a depraved indifference to human life"

(id., at 530). Logically, "[t]he act is either intended or not

intended; it cannot simultaneously be both" (id.; see also People

v Robinson, 75 NY2d 879 [1990]).

This appeal presents the question whether a defendant

may be convicted for both depraved indifference murder and

2 Prior to 1998, we referred to murder under Penal Law §

125.25 (2) as depraved mind murder. We have since generally

referred to murder under this section as depraved indifference

murder, without any legal significance attached to the different

nomenclature adopted by the Court. 

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intentional murder based on the theory of transferred intent, as

charged in the conjunctive, when the defendant kills one person

while intending to kill another. The Appellate Division is

divided on this issue. On the one hand the Third Department in

People v Molina (79 AD3d 1371 [3d Dept 2010]), held that a

defendant may be found guilty of either intentional murder under

the doctrine of "transferred intent," or depraved indifference

murder for shooting at an intended victim and killing a

bystander. Otherwise, a charge in the conjunctive "impermissibly

takes the issue of determining mens rea out of the jury's hands"

and multiplies liability (Molina, 79 AD3d at 1374). 

In contrast the Fourth Department concluded in People v

Henderson (78 AD3d 1506 [4th Dept 2010]), that "defendant may be

convicted of both [intentional and depraved indifference crimes]

because [defendant] may have possessed different states of mind

with regard to different potential victims" (id. at 1507). 

Similarly, the Second Department in People v Douglas (73 AD3d 30

[2d Dept 2010]), concluded the rule that a defendant cannot be

guilty of intentional and reckless assault for the same

individual does not apply where the defendant lacks an intent to

injure the victim, but the crime is deemed intentional by

operation of law under a theory of transferred intent. The First

Department in People v Monserate (256 AD2d 15 [1st Dept 1998]),

upheld the submission of intentional murder and depraved

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indifference murder in the conjunctive for the death of a

bystander, shot in a gun battle, because by acting intentionally

as to his intended victim, defendant caused the death of the

bystander with transferred intent, and with depraved

indifference. As these decisions show, resolution of this issue

depends on the proper interpretation of what constitutes the

defendant's act and state of mind. That, of course, requires an

understanding of the terms and purpose of the transferred intent

theory.

The transferred intent theory, codified under Penal Law

§ 125.25 (1), provides that "where the resulting death is of a

third person who was not the defendant's intended victim, the

defendant may nonetheless be held to the same level of criminal

liability as if the intended victim were killed" (People v

Fernandez, 88 NY2d 777, 781 [1996]). This theory of intent is

founded on a legal fiction, whereby once the state of mind is

established the identity of the victim is irrelevant (Fernandez,

88 NY2d at 781). The theory is deployed in order to permit a

jury to find defendant guilty of intentional murder, even though

technically lacking an intentional state of mind with respect to

the actual victim (Fernandez, 88 NY2d at 781).

The purpose of the transferred intent theory is "to

ensure that a person will be prosecuted for the crime [that

person] intended to commit even when, because of bad aim or some

other 'lucky mistake,' the intended target was not the actual

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victim" (Fernandez, 88 NY2d at 781, citing People v Birreuta, 162

Cal App 3d 454, 459 [Cal Ct App 1984]). Given this stated goal,

the Court has cautioned that transferred intent "should not be

employed to 'multiply criminal liability, but to prevent a

defendant who has committed all the elements of a crime (albeit

not upon the same victim) from escaping responsibility for that

crime" (Fernandez, 88 NY2d at 782, citing Ford v State, 330 Md

682, 711 [1993]). Hence, it should be applied where a defendant

"could not be convicted of the crime because the mental and

physical elements do not concur as to either the intended or

actual victim" (Fernandez, 88 NY2d at 782, citing Ford, 330 Md at

711).

With this understanding, we conclude that this Court's

prior analysis in Gallagher applies with equal force when the

People proceed on a transferred intent theory. Whether based on

the defendant's conscious objective towards the intended victim,

or on a transferred intent theory directed at a different, and

actual, victim, defendant's conviction depends on a jury finding

that defendant harbored the requisite intentional mental state.

Defendant cannot then also be guilty of the same murder premised

on a depraved state of mind. 

That the People had at their disposal two bases by

which to establish the requisite state of mind -- transferred

intent and depraved indifference -- does not permit the People to

seek multiple convictions for the one murder for which the

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defendant was charged, prosecuted and tried. To hold otherwise

is contrary to "the basic principle that a defendant should not

be convicted and punished more than once for conduct which,

although constituting only one prohibited act, may because of

statutory definition, be theorized as constituting separate

criminal acts" (People v Perez, 45 NY2d 204, 208 [1978]). Under

New York law, defendant is held accountable for the murder he

committed, even if it was not the one he set out to complete

(Penal Law 125.25 [1]).

Moreover, defendant's state of mind is a matter for the

jury (see Gallagher, 69 NY2d at 530), and as we have held

depraved indifference is a culpable mens rea, distinct from the

mens rea required for intentional murder (People v Feingold, 7

NY3d 288, 294 [2006]). Permitting conjunctive charges of

depraved indifference and intentional murder based on transferred

intent absolves the jury of rendering a verdict based on a proper

determination of the defendant's state of mind. 

The People's main argument in support of the jury

charge and defendant's conviction is that the counts are based on

different states of minds and outcomes. According to the People,

there is no multiple liability on the facts of this case because

the conviction for intentional murder required establishing

beyond a reasonable doubt defendant's intent to cause the death

of Benjamin. Whereas, the conviction for depraved indifference

murder required establishing beyond a reasonable doubt

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defendant's recklessness with respect to the creation of a grave

risk of death of the victim under circumstances evincing a

depraved indifference to human life, resulting in the victim's

death.

The People contend that the existence of two outcomes,

related to two different individuals, distinguishes this case

from Gallagher, and instead, places it squarely within the line

of analysis adopted in People v Trappier. In Trappier, the Court

affirmed a defendant's conviction of attempted first-degree

assault and first-degree reckless endangerment for firing three

shots in the direction of his intended victim, reasoning that the

defendant could have "intend[ed] one result -- serious physical

injury -- while recklessly creating a grave risk that a

different, more serious result -- death -- would [have] ensue[d]

from his actions" (People v Trappier, 87 NY2d 55, 57 [1995]). 

The Trappier Court affirmed the principle that the separate mens

rea of intent and recklessness "are not mutually exclusive when

applied to different outcomes" (People v Trappier, 87 NY2d 55, 57

[1995]).

The fundamental error of the People's argument, as

illustrated by their misplaced reliance on Trappier, is that

while there are two distinct states of mind attendant to the

murder counts, there is but one outcome in defendant's case: the

death of the victim. The People seek to escape this conclusion

by avoiding the analytic components of the transferred intent

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theory. The first step is to establish an intentional conscious

objective to cause the death of another. The second step is to

establish that the act of shooting resulted in a death. Thus,

the legally significant question is whether the People have

established the intent to kill, because "the identity of the

victim is irrelevant" (Fernandez, 88 NY2d at 781). By focusing

on the intended victim rather than on the outcome that a murder

was committed, the People ignore the essence of intentional

murder based on transferred intent. Here, unlike in Trappier, we

address the application of the separate mens rea of intent and

depraved indifference to the same outcome, a bystander's death,

and hold that the two are mutually exclusive, even where the

former is premised on the doctrine of transferred intent.

We conclude, therefore, that defendant could not be

convicted of both intentional and depraved indifference murder,

and that a new trial should be ordered on these counts.

III.

Defendant argues that the trial court violated his

federal Sixth Amendment right to confrontation by admitting the

unavailable witness's grand jury testimony because the People

failed to present evidence that linked defendant to the alleged

threats against the witness's family members. Defendant further

argues that the error is not harmless because it bolstered

evidence that defendant was the aggressor, thus undermining

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defendant's justification defense. In response, the People

contend that admission of the witness's grand jury testimony was

proper because the evidence showed that the threats came from

defendant's group, the Israelites, and that only the defense had

knowledge the witness was scheduled to testify. Therefore, the

evidence sufficiently linked defendant to the threats. In any

event, the People contend the error was harmless because other

evidence established defendant as the person who fired the first

shot. 

We are unpersuaded by the People's arguments and

conclude that this evidence was insufficient to establish

defendant's misconduct. Moreover, admission of the grand jury

testimony was constitutional error that, on the facts of this

case, cannot be construed as harmless.

Defendant has a federal constitutional right to

confront the witnesses against him (US Const Amend VI; Crawford v

Washington, 541 US 36 [2004]). "As a general rule, the Grand Jury

testimony of an unavailable witness is inadmissable as

evidence-in-chief" (People v Geraci, 85 NY2d 359, 365 [1995] see

also CPL § 670.20). However, a limited exception to this

prohibition, and to the prohibition against the admission of

hearsay, applies where the People establish by clear and

convincing evidence that "the unavailability was procured by

misconduct on the part of the defendant" (id. at 366 [1995]). 

Where the People establish that a witness is unwilling to testify

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due to the defendant's own conduct, or by the actions of others

"with the defendant's knowing acquiescence," defendant forfeits

the right to confrontation, and such out-of-court statements are

admissible (Geraci, 85 NY2d at 366). This exception is based on

"the public policy of reducing the incentive to tamper with

witnesses" (id. at 367-68).

Here, the court determined that the witness's

unwillingness to testify was due solely to the defendant, but the

witness's testimony and the People's representations at the

Sirois hearing provide no basis for this conclusion. As the

record shows, the witness identified "the Israelites" as the

source of the threats to his family, but provided no evidence

linking defendant to the threats or anyone who approached his

siblings. On the contrary, the witness was unable to say when or

where the threats were made. He could not describe who spoke to

his brother, or how often and under what circumstances his

brother was approached. With respect to his sister, the witness

never testified that she was personally approached and

threatened. Rather, he testified that she heard from someone

that the Israelites believed the witness was snitching. 

Furthermore, the siblings never told the witness that they feared

defendant, or that defendant encouraged the Israelites'

suspicions about the witness. Thus, the witness provided no

information about any misconduct by defendant, nor did he provide

any facts which support an inference that defendant planned or

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engineered the threats.

Notably, the People failed to submit evidence that

defendant communicated with anyone about the witness and his

possible testimony, or that defendant "had the opportunity to

arrange and orchestrate" any threats against the witness's family

(People v Cotto, 92 NY2d 68, 77 [1998]). Instead, the People

promoted the inference that because they informed the defendants

that the witness was going to testify, and the witness himself

did not tell anyone that he was cooperating in the case,

defendant must have been the source of the Isrealites's

suspicions about the witness. Even if the inference of a

communication were appropriate on this record, the additional

inference that the communication was necessarily intended and

structured to procure the witness's unavailability is based on

nothing more than pure speculation. 

We disagree with our dissenting colleagues that in this

case a bare, alleged communication revealing the identity of a

witness, without some evidence of misconduct, provides a causal

link between defendant and the witness's unwillingness to testify

(Dis Op at 6). Assuming defendant told someone that the witness

was going to testify for the People, that alone does not

constitute witness tampering or coercive behavior. In order to

infer the misconduct required by our case law, there must be some

analytic basis to trace the threats back to defendant (see People

v Smart, 23 NY3d 213, 220 [2014][the "People must demonstrate by

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clear and convincing evidence that the defendant engaged in

misconduct aimed at least in part at preventing the witness from

testifying and that (defendant's) misdeeds were a significant

cause of the witness's decision not to testify"], citing Geraci,

85 NY2d at 366-368, and People v Maher, 89 NY2d 456, 462 [1997]).

Here, the only possible connection between defendant

and the source of the threats is defendant's association with the

Israelite congregation. Yet, more than membership is necessary

to establish clear and convincing evidence of misconduct, and in

this case the record lacks any facts from which to infer

defendant is behind the Israelites' threats. For example, there

is no evidence that defendant controlled the group's actions,

influenced members of the group to act, or that he persuaded any

individual Israelite to threaten the witness's family (see People

v Smart, 23 NY3d 213, 221 n 3 [2014]; Maher, 89 NY2d at 461;

Geraci, 85 NY2d at 366).

Unlike other cases where the defendant personally seeks

to threaten a witness or directs others to do so at the

defendant's behest, or where a defendant knowingly acquiesces,

here there is no similar evidence linking defendant to the

threats (see e.g. Smart, 23 NY3d at 221 [evidence sufficient

where recorded telephone conversations revealed that defendant

threatened the witness "with violence in response to [the

witness's] avowed willingness to testify and encourag[ed] [the

witness to disappear]," and further enlisted his mother to aid in

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preventing the witness from testifying, all in furtherance of

ensuring the witness's unavailability]).

While it is possible for the People to satisfy their

burden without direct evidence of the defendant's attempts to

dissuade the witness from testifying, there must be more than the

conjecture relied upon by the People in defendant's case.

Notwithstanding our dissenting colleagues' argument to the

contrary, we do not adopt a new standard. Indeed, we still

adhere to a "flexible approach" to the admission of a witness's

grand jury testimony that accounts for the reality that the

People can rarely discover direct evidence of a defendant's role

in making a witness unavailable, and we follow a "pragmatic

framework" of inferential reasoning that "rel[ies] heavily on

circumstantial evidence and the sequence of events" (Smart, 23

NY3d at 224, citing People v Encarnacion, 87 Ad3d 81, 85-89 [1st

Dept 2011], and People v Clark, 55 AD3d 1447, 1448 [4th Dept

2008], lv denied 11 NY3d 923 [2009]). We thus adhere to our

longstanding requirement that the People present legally

sufficient evidence of circumstances and events from which a

court may properly infer that the defendant, or those at

defendant's direction or acting with defendant's knowing

acquiescence, threatened the witness (see Smart, 23 NY3d at 221 n

3; Maher, 89 NY2d at 461; Geraci, 85 NY2d at 366).

As the Court said in Geraci, the standard of proof

imposed on the People in these cases is intended to be "high

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enough to assure a great degree of accuracy in the determination

of whether the defendant was, in fact, involved in procuring the

witness's unavailability for live testimony" (Geraci, 85 NY2d at

368). Here, the People relied on a speculative inference that

defendant's association with the Israelites established his

involvement in the threats to the witness's family, and in so

doing failed to meet their heavy burden.

The constitutional error in admitting the unavailable

witness's grand jury testimony requires reversal unless that

error was harmless beyond a reasonable doubt, or in other words,

"'there is no reasonable possibility that the error might have

contributed to defendant's conviction'" (People v Smith, 97 NY2d

324, 330 [2002], citing People v Crimmins, 36 NY2d 230, 237

[1975]; see also Maher, 89 NY2d at 462). Here, the witness's

testimony that defendant fired the first shot directly

contradicted defendant's testimony that he shot at Benjamin only

after Benjamin shot at him. Thus, the witness's testimony had an

irrefutable damaging effect on defendant's justification defense. 

The People contend that others provided testimony

establishing defendant as the initial shooter. The People rely

on the testimony of A.M. and D.S., two of the men who went with

Benjamin looking for defendant, and H.G., a resident in a

building nearby who viewed the events from his window. However,

their testimony failed to establish defendant as the first to

shoot. 

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Only A.M. testified that he saw defendant point a gun

and heard defendant fire it, while observing Benjamin with his

hands in his pockets. Yet, this testimony pales in comparison to

the witness's assertion that he saw defendant fire first. 

Moreover, A.M.'s credibility was suspect because he initially

lied to police about his presence at the shootout. A.M. also has

a history of criminal convictions, including for burglary, petit

larceny, attempted assault, and possession of marijuana. 

Further, unlike the witness who appeared to be an unconnected and

unbiased eyewitness, A.M. was part of the group who went to the

building looking for defendant. Recognizing these weaknesses,

the prosecutor relied on the witness to bolster A.M.'s testimony

and argued in summation that the witness's testimony corroborated

A.M.'s statements.

The other group member, D.S., testified that he saw

Benjamin pull out a gun and heard shots going back and forth,

from two separate weapons. His testimony that the first shot he

heard came from the direction of the building is a weak basis to

conclude defendant was the initial shooter. Even less helpful to

the People is H.G.'s testimony, because he looked out of his

window only after several shots were fired.

On the basis of the record, we conclude that there is a

reasonable possibility that the witness's testimony influenced

the jury's verdict on the intentional murder and attempted murder

counts, because his testimony was material to the crucial issue

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of whether defendant was the initial aggressor. Therefore, a new

trial should also be ordered on the attempted murder count.

IV.

Defendant's remaining claims are easily disposed of. 

The claim that the evidence was legally insufficient is without

merit because the evidence permitted the inference of a tacit

agreement between defendant and Benjamin to engage in mutual

combat (see People v Hines, 97 NY2d 56 [2001] [evidence legally

sufficient where “any valid line of reasoning and permissible

inferences could lead a rational person to the conclusion reached

by the fact finder on the basis of the evidence at trial, viewed

in the light most favorable to the People”], citing People v

Williams, 84 NY2d 925, 926 [1994]). 

Defendant's challenge to the prosecutor's summation is

unpreserved and his claim that trial counsel's failure to object

to the prosecutor's summation deprived him of effective

assistance of counsel is without merit (see People v Benevento,

91 NY2d 708, 713-714 [1998] [ineffective assistance of counsel

claim requires defendant to show counsel's performance was

deficient and that this deficiency prejudiced defendant such that

defendant did not receive a fair trial]; People v Baldi, 54 NY2d

137, 147 [1981] [test for ineffective assistance whether

defendant received meaningful representation]; People v Galloway,

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54 NY2d 396, 399 [1981] [prosecutor permitted wide latitude in

rhetorical comment in closing]). Last, to the extent defendant's

pro se brief can be interpreted to challenge the criminal

possession conviction, we also hold that claim to be without

merit.

V.

The order of the Appellate Division should be modified

by remitting to Supreme Court for further proceedings in

accordance with the opinion herein and, as so modified, affirmed.

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People v Darius Dubarry

No. 32 

PIGOTT, J.(dissenting, in part):

The majority chooses to set aside defendant's

conviction of attempted murder despite the fact that defendant

admitted to firing at his intended target, Herburtho Benjamin. 

The majority is dissatisfied that the trial court admitted the

grand jury testimony of an innocent bystander who, fearing for

his family's safety, refused to testify truthfully

notwithstanding the fact that the court learned from the

witness's Sirois hearing testimony that his refusal was induced

by defendant. Because the majority's rationale departs from our

long-held jurisprudence concerning the admission of grand jury

testimony where the People have established to the trial court's

satisfaction that the defendant's actions were behind a witness's

unavailability, I dissent. Defendant was not deprived of his

Sixth Amendment right to confrontation and there is therefore no

need for a retrial on the attempted murder count.

The following testimony was given by the eyewitness at

the Sirois hearing: The day before the witness was set to

testify against defendant, two of his siblings, who resided

across the street from where the shooting occurred, visited him

at a federal penitentiary. At that time, neither the witness nor

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his siblings knew that he was slated to be a witness for the

prosecution. Significantly, just one week earlier the People had

disclosed to the defense the witness's identity and the substance

of his statements implicating defendant in the shooting. 

With no knowledge of his impending testimony, the

witness's 23-year-old brother told the witness that he had been

approached by the Israelites and that they had accused the

witness of "snitching." The witness's sister reported that one

Kendrick, who was not an Israelite, told her that Israelite

members suspected the witness of snitching, and the brother

confirmed her account. Each sibling told the witness that they

felt "like they were getting hostility in the neighborhood," and

the witness explained to the court that this caused him concern

for the safety of his family, given their proximity to where the

shooting occurred and the fact that, because of his

incarceration, he was unable to protect them from harm. He also

explained that, but for the threats made to his siblings, "it

would be a different story" and he'd "be willing to testify." 

These threats apparently worked because, when the

witness arrived at court the following day, he refused to

testify, telling the court that he "didn't see anything." Of

course, this particular witness had seen plenty, as evidenced by

his grand jury testimony that was eventually read into the record

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during the People's case-in-chief. That testimony established

that he saw defendant step out of the building, light a cigarette

and start shooting. His eyewitness testimony established that

defendant started shooting first and corroborated the testimony

of other eyewitnesses. Thus, he was not an insignificant witness

and, in fact, may have been one of the People's strongest, which

explains why defendant would not have wanted him to testify. 

Following appropriate procedure, in light the witness's

refusal to testify, the trial court conducted a Sirois hearing,

where the witness expressed the reasons for his fear of

testifying against defendant as summarized above. The court

asked him if he could be compelled to testify if the court held

him in contempt and sentenced him to an additional 30 days in

jail, but the witness stated that would not change his mind. He

was subjected to cross-examination by defense counsel, and

remained steadfast in his assertions that threats were made

against his family and that he did not want to testify for that

reason. 

At the conclusion of the hearing, the People argued

they had not released the witness's statements to the defense

until the previous week, and it was only reasonable for the court

to infer that it was defendant who disclosed to Israelite members

that the witness's anticipated testimony would be damaging to

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defendant. The trial court agreed, and the Appellate Division

affirmed that determination. 

 Grand jury testimony of an unavailable witness is not

admissible as direct evidence against the defendant unless the

defendant caused the witness's unavailability through "violence,

threats or chicanery," thereby precluding the defendant from

asserting a violation of his right of confrontation (People v

Cotto, 92 NY2d 68, 75-76 [1998], citing People v Geraci, 85 NY2d

359, 366 [1995]). The reasons for allowing such testimony are

twofold: a defendant should not benefit from his own wrong, and 

the integrity of the adversary process mandates deterring

defendants from attempting to squelch the damaging testimony of

an adverse witness (see Geraci, 85 NY2d at 366, 368 [citations

omitted]). We have deemed such policies "important" enough to

allow "circumstantial proof" in light of "the inherently

surreptitious nature of witness tampering," acknowledging that

"it would be unrealistic and unnecessary to adopt a formula that

would make it impossible to establish the foundation [for the

admission of grand jury testimony] in so many cases" (id. at

369). In my view, the majority's opinion does just that. 

The majority emphasizes that the witness could not

"identify who specifically spoke to his brother" and that "the

witness never testified that [his sister] was personally

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approached and threatened," only that she "heard from someone

[named Kendrick] that the Israelites believed the witness was

snitching" (majority op, at 18). The identity of who exactly

made the threats, although undoubtedly helpful, is not required

to establish defendant's link to them because "[r]equiring

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" (Cotto, 92

NY2d at 77 n 1). A resourceful defendant need not be a cardcarrying member of Mensa to realize that it is in his best

interest that the identity of the person making the threats

remain a secret, lest the People be able to link the defendant to

the individual and, by implication, the threats themselves. 

Thus, merely because the witness and his siblings were unable to

identify who actually made the threats does not factor into the

equation. 

The majority asserts that "the only possible connection

between defendant and the source of the threats is defendant's

association with the Israelite congregation" and that "more than

membership" is required, such as evidence that defendant

"controlled the group's actions, influenced members of the group

to act, or that he persuaded any individual Israelite to threaten

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- 6 - No. 32

the witness's family" (majority op, at 20). But not every

instance of witness tampering involves a taped jailhouse

telephone conversation where the defendant threatens a specific

witness (see People v Smart, 23 NY3d 213, 216 [2014]), or a

defendant who is out on bail and therefore has "the opportunity

to orchestrate [the] intimidation" (Geraci, 85 NY2d at 369; see

Cotto, 92 NY2d at 77-78 [defendant out on bail when threats were

made and had the opportunity to arrange and orchestrate the

threats]). Unlike the defendants in Geraci and Cotto, who knew

the witness's identity months before trial and, in fact, knew

that the witness had witnessed the crime, defendant in this case

had no idea that this particular witness observed the offense and

did not know that he was going to testify until the week before

trial. 

We have made clear that the absence of direct evidence

is not fatal to the People's proof because "witness tampering is

a surreptitious activity rarely admitted by the defendant or the

witness" and "few cases will involve direct evidence of this

causal link between the defendant's misconduct and the witness's

refusal to testify or failure to appear in court" (Smart, 23 NY3d

at 220 [2014], citing Geraci, 85 NY2d at 369; Cotto, 92 NY2d at

76-77). As such, the trial court, after listening to and

evaluating the witness's testimony, is permitted to "infer the

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requisite causation from the evidence of the defendant's coercive

behavior and the actions taken by witnesses in direct response to

or within a close temporal proximity to that misconduct" (Smart,

23 NY3d at 220-221, citing Matter of Holzman v Hellenbrand and

Sirois, 92 AD2d 405, 415 [2d Dept 1983]). 

Here, the People proffered sufficient evidence for the

trial court to draw a permissible inference that defendant's

misconduct caused the witness to become unavailable. He

explained that he was not aware that he would be testifying until

that very morning, and that he had been visited by his siblings

the day before, which is when he learned of the threats and

feared for his family's safety. It is irrelevant that the

witness's siblings did not tell him that they feared defendant

(majority op, at 18). The intended effect is to have the

prospective witness refuse to testify or suffer an unexpected

memory loss, and, here, the witness's candid statements to the

court, tested by the defense on cross-examination, created the

obvious inference that defendant played a role in his refusal to

testify.

When the witness's siblings conveyed their concerns to

him, neither he nor they knew that he was scheduled to testify

the following day, nor did his brother know that he had

previously provided information regarding defendant's case. 

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But defendant knew both of these things. 

The witness did not discuss his potential testimony

with any of his family members or any of the inmates with whom he

was serving time. When the siblings disclosed the threats to

him, the defense had been in possession of his statements for a

week. Given this testimony, the court reasonably inferred that

defendant was behind the threats, and those inferences should not

be disturbed by this Court. 

The majority states that "[e]ven if the inference of a

communication were appropriate on this record" -- (and it clearly

is) -- "the additional inference that the communication was

necessarily intended and structured to procure the witness's

unavailability is based on nothing more than suspicion" (majority

op, 19). Given all of the facts, and in light of the witness's

decision to not testify and his stated reasons, the trial court

drew the inference that threats made to his family days before

trial, after the defense learned of his damaging statements, were

caused at the direction of defendant. That is the fact finder's

job, not ours. 

The majority insists that it is not adopting a new

standard (majority op, 21), but given its interpretation of our

jurisprudence in this area, it clearly is. We are turning an

evidentiary determination into a trial within a trial. Simply

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- 9 - No. 32

put, the majority's holding rewards surreptitious conduct by

defendants, allowing them to tamper with and intimidate witnesses

so long as they do it quietly without leaving a trail that leads

to the defendant. The trial court here made a permissible,

logical inference, and the Appellate Division agreed. Those

determinations should be affirmed. 

This witness was an unconnected and unbiased

eyewitness. The jury, apparently crediting his grand jury

testimony that he was in an apartment across the street from the

shooting and witnessed defendant fire the first shot, convicted

defendant of not only of two counts of second-degree murder, but

also of attempted murder in relation to his shooting at Benjamin. 

Defendant will receive a new trial on the intentional

and depraved indifference murder counts because the trial court

erred in charging those counts in the conjunctive. But there is

no reason to tamper with the attempted murder count as it relates

to defendant's criminal conduct toward Benjamin. The jury found

that defendant, without justification and with the intent to

cause Benjamin's death, attempted to cause his death. The

witness's testimony that defendant shot first supports that

conclusion. Now, upon a retrial, that testimony will be withheld

from the jury. The grand jury testimony will not be admissible

and a new jury will be asked to make a determination without that

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eyewitness testimony. 

* * * * * * * * * * * * * * * * *

Order modified by remitting to Supreme Court, Kings County, for

further proceedings in accordance with the opinion herein and, as

so modified, affirmed. Opinion by Judge Rivera. Chief Judge

Lippman and Judges Abdus-Salaam and Stein concur. Judge Pigott

dissents in part in an opinion in which Judges Read and Fahey

concur.

Decided April 7, 2015

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