## Facts

- After a brief argument in a Brooklyn nightclub, Anthony Granese was fatally stabbed on April 20, 1990.
- Although many people were present, Peter Terranova was the only person who came forward and identified Sammy Geraci as the stabber.
- Terranova testified before the grand jury that the incident began as a shoving match and ended when Geraci pulled a knife from his waistband and stabbed Granese in the chest.
- Terranova also stated that he saw Geraci stab another person, Rocky Giamportone, who could not identify his assailant.
- Terranova described Geraci fleeing the scene and leaving in a white car with his brother, Frank; other patrons pursued, and another brother, Paul, was seen firing a gun into the air, possibly wounding Anthony Gallo.
- Geraci was indicted principally based on Terranova’s grand jury testimony.
- Shortly before trial, Terranova abruptly left his job and moved out of state without notice; when contacted, he said he did not want to testify at trial.
- The prosecution requested a Sirois hearing to determine whether Geraci’s misconduct caused Terranova’s unavailability and whether the grand jury testimony could be used at trial.
- At the Sirois hearing, investigators testified that Terranova previously gave detailed oral and sworn statements consistent with his grand jury testimony.
- The trial court found intimidation attributable to Geraci, admitted Terranova’s grand jury testimony as evidence-in-chief, and Geraci was convicted of first-degree manslaughter and two counts of first-degree assault.

## Issues

1. What burden of proof must the prosecution satisfy to show that a defendant’s misconduct caused a witness’s unavailability, permitting admission of the witness’s grand jury testimony as direct evidence?
2. Whether the prosecution met that burden to attribute Terranova’s absence or refusal to testify to Geraci’s wrongdoing.
3. Whether admitting Terranova’s grand jury testimony violated the hearsay rule barring grand jury testimony as evidence-in-chief and the Sixth Amendment right of confrontation.

## Decision

- The Court of Appeals held the prosecution must establish by clear and convincing evidence that the defendant (or someone acting at the defendant’s direction) procured the witness’s unavailability or refusal to testify.
- The Court concluded the prosecution’s proof met that standard on this record.
- The Court held that, once procurement is shown, the defendant forfeits confrontation and hearsay objections to use of the witness’s grand jury testimony.
- The conviction was affirmed.

## Legal Principles

- As a general rule, grand jury testimony of an unavailable witness is not admissible as evidence-in-chief at trial.
- A defendant forfeits hearsay and Confrontation Clause objections when the defendant’s wrongdoing causes a witness’s unavailability or refusal to testify (forfeiture by wrongdoing), as determined in a pretrial Sirois hearing.
- The prosecution must prove procurement of the witness’s unavailability by clear and convincing evidence; a preponderance standard is insufficient given the constitutional interests implicated.
- If procurement is established, the witness’s prior sworn grand jury testimony may be admitted in the prosecution’s direct case despite the usual evidentiary bar.

## Conclusion

The court affirmed Geraci’s convictions, holding that clear and convincing evidence supported the finding that Geraci procured the eyewitness’s unavailability, and that this wrongdoing forfeited confrontation and hearsay objections, allowing the grand jury testimony to be admitted as direct evidence.


People v. Geraci, 85 N.Y.2d 359 (N.Y. 1995)