People v. Johns

We agree with the defendant’s contention that the trial court erred in concluding that a witness was unavailable due to threats allegedly made to her which were linked to the defendant. CPL 670.10 provides, in relevant part, that the previous testimony of a witness may be admitted into evidence at a subsequent trial if the witness “is unable to attend * * * by reason of death, illness or incapacity, or cannot with due diligence be found.” To admit such testimony as evidence at a subsequent trial, a party must establish by clear and convincing evidence that the witness’s unavailability was…