¶1(concurring). I do not subscribe to the dissent’s position that defense counsel waived defendant’s right to a Sirois /Hellenbrand hearing. I agree with the majority that County Court erred in acceding to the People’s insistence that a Sirois/Hellenbrand hearing was not necessary (see, Matter of Holtzman v Hellenbrand, 92 AD2d 405). In my view, at the time of its decision, County Court merely had before it evidence which demonstrated “a distinct possibility that the defendant participated in making the witness unavailable” (id., at 411). Notably, a key piece of evidence relied upon by County Court was a letter (People’s exhibit No. 6) which was not allowed in evidence at the trial.
¶2Defendant is entitled to a full evidentiary hearing at which the People must meet their burden of establishing by clear and convincing evidence that the victim’s refusal to testify at the trial was induced by defendant’s misconduct (see, People v Geraci, 85 NY2d 359, 365-367; People v Hamilton, 127 AD2d 691, affd 70 NY2d 987). Accordingly, I vote to reverse defendant’s conviction and order a new trial, solely on the failure of County Court to hold a Sirois /Hellenbrand hearing.