The court properly refused to permit defendant to introduce the suppression hearing testimony of a defense witness who had died between the hearing and the trial. Suppression hearing testimony is not one of the categories of prior testimony that may be received pursuant to CPL 670.10, and such testimony is therefore inadmissible as hearsay (People v. Ayala, 75 N.Y.2d 422, 428). The court properly rejected defendant's argument that he was nevertheless entitled to introduce this evidence under his constitutional right to present a defense. This hearsay evidence lacked sufficient indicia of reliability, particularly because the People did not have a full and fair opportunity at the suppression hearing to cross-examine the deceased defense witness on matters concerning the merits of the drug sale and possession charges (compare People v. Robinson, 89 N.Y.2d 648; 654-657).
At the suppression hearing, the witness was called to testify concerning the circumstances of the police entry into an apartment. While a very limited portion of his testimony touched on defendant's guilt or innocence of the underlying charges, that testimony was completely peripheral to the suppression issue. As a result, the People had no reason to cross-examine the witness on this subject. Moreover, since the witness's testimony on the suppression issue was more helpful than harmful to the People's position, the People had little incentive to impeach his credibility at all.
Aside from lacking any indicia of reliability, the deceased witness's hearing testimony was not critical to defendant's defense. Accordingly, exclusion of this evidence did not deprive defendant of a fair trial (see Chambers v. Mississippi, 410 U.S. 284, 301).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.