People v Herrera

[*1] People v Herrera 2006 NY Slip Op 50450(U) [11 Misc 3d 1070(A)] Decided on March 22, 2006 Supreme Court, Rockland County Kelly, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 22, 2006
Supreme Court, Rockland County

THE PEOPLE OF THE STATE OF NEW YORK,

against

DOUGLAS HERRERA, Defendant.



05-208



MICHAEL E. BONGIORNO, ESQ.

District Attorney of Rockland County

BARRY WEISS, ESQ.

Attorney for Defendant

William A. Kelly, J.

A combined Mapp/Huntley/Wade/Dunaway [FN1] hearing was held pursuant to a prior order of this Court. The relevant findings of fact and conclusions of law are as follows:

On April 29, 2005, at approximately 10:40 a.m., the dispatchers at the Town of Clarkstown Police Department received a 911 call from a female who had seen blood at her sister's house. She told the dispatchers that "something was wrong." Within a few minutes several officers responded to the Nagle residence at 21 Tamarac Drive, the location of the call.

Upon arriving at the scene, the officer's were met by a visibly upset Ann Fallon, who had made the 911 call. Ms. Fallon was the sister of the victim. She told the officers that something happened to her sister. She explained that she had seen blood in the master bedroom, and posited that the perpetrator may still be inside the house.

Lieutenant Anthony Ovchinnikoff led a group of officers into the house through the back door. After searching and securing the first floor, the officers proceeded upstairs. As they reached the upstairs, blood could be seen inside the master bedroom. Upon entering that room, the officers observed the victim, Mary Nagle, lying naked and face down on the bed. She was covered in blood and motionless.

The officer's observed large amounts of blood throughout the bedroom. Additionally, clothes were strewn throughout the room, furniture was knocked over and there was blood spatter on the walls. After searching and securing the second floor, Officer Craig Alemi checked the victim's pulse, but found none. The paramedics arrived shortly thereafter and pronounced Ms. Nagle dead.

While the other officers were inside the house, Officer Jacqueline Kelly and Detective Michael Novotny spoke to Ms. Fallon and tried to obtain information from the hysterical woman. In addition to relating what she had seen inside the house, Ms. Fallon described a telephone conversation she had with the victim at approximately 8:50 a.m. The victim concluded that conversation by telling Ms. Fallon that she had to go because the man doing the power washing wanted to speak to her.

Ms. Fallon further described an encounter with a man she observed exiting the back door [*2]of the house. The man was holding a black plastic bag. When Ms. Fallon questioned the man, he said that the victim had left the premises. When Ms. Fallon challenged him on the assertion, he claimed he did not speak English. Ms. Fallon then entered the residence to check on her sister. At that time, a neighbor observed the man carrying the black plastic bag leaving the area of the Nagle house on foot.

Ms. Fallon described the hispanic man as approximately five feet ten to six feet tall, 180 pounds with black hair and a scruffy beard. She further stated that the man had blood or red paint around his mouth.

Shortly after the police arrived at the scene, Robert Collister, the owner of Color On Painting arrived. He told Officer Kelly and Det. Novotny, that he had dropped off a single employee, Douglas Herrera, at the Nagle house earlier that morning to power wash the deck. When he returned to the house later that morning, Douglas Herrera was no longer there. Further, the power washing machine was abandoned and left running. Mr. Collister finished washing the deck and loaded the power washer into the van Douglas Herrera had driven to the Nagle home. Mr. Collister then removed the keys from that van.

Mr. Collister told the police that he had recently hired Douglas Herrera. He provided the police with a detailed physical description of the defendant and described the clothes he was wearing. He was described as being between five feet ten inches and six feet tall and weighing approximately 175 pounds with a skinny build. He had black hair and a scruffy beard. He was wearing a white t-shirt with "Color On" printed on it and white painter's pants when he was dropped off at the Nagle house that morning.

Based upon the conversations with Mr. Collister and Ms. Fallon, a description was compiled and broadcast. The broadcast composite description described the perpetrator as an Hispanic male of approximately 30 to 35 years old. He was described as being between five feet ten inches and six feet tall and weighing approximately 175 pounds with a skinny build. He had black hair, a scruffy beard and blood or paint on his face. He was last seen wearing a white t-shirt with "Color On" printed on it and white painter's pants.

After initially responding to the call at the house, Officer Alemi, a helicopter pilot, was dispatched to conduct an aerial search for the suspect. Officer Alemi and another pilot began circling above the area surrounding the crime scene in the departmental helicopter. At approximately 2:30 p.m., Officer Alemi observed a man standing next to a tree in the yard of a house. The pilot brought the helicopter down to about sixty feet above the ground and circled the tree trying to get an unobstructed look at the man's face. As the helicopter circled, the man never looked up and continuously maneuvered himself to the side of the tree opposite the helicopter. After the helicopter made two revolutions around the tree, the defendant began running south, continuously looking left and right.

Officer Alemi was able to observe that the man fit the physical description conveyed to him, namely that of a Hispanic male with dark hair and a scruffy beard approximately five foot ten to six feet tall and weighing approximately 175 pounds. Officer Alemi was not able to observe if the man had blood or paint on his face. Although the physical description matched, the subjects clothes did not match those described to him. When Officer Alemi saw the subject was wearing a white t-shirt and tan shorts. Officer Alemi could not tell if the t-shirt had a logo imprinted on it. [*3]

As Officer Alemi observed the suspect running south, the defendant twice ran into bushes for a period of time. The defendant continued to run until he reached a house under construction. The house was about one mile from the crime scene. The suspect turned around several times before walking to the area of the driveway. As he arrived at the driveway, he was met by several officers who had been directed there by Officer Alemi.

Det. Novotny heard Officer Alemi's running description of his observations. He responded to the house under construction, arriving there before the other officers. Detective Novotny saw the defendant approaching him in the driveway. From a distance of approximately thirty feet Det. Novotny observed that the defendant fit the physical description he had obtained. He noted that the defendant was wearing light colored clothing. He also noticed what appeared to be spots of dried blood on the shirt and the shorts the defendant was wearing. Det. Novotny, who had his weapon drawn, then ordered the defendant to lay on the ground. As he approached the defendant, the detective observed what appeared to be dried blood around the defendant's mouth. Upon being asked, the defendant told the officers that his name was Douglas Herrera. The defendant was then cuffed and led to a police car. He was transported back to the Clarkstown Police station, arriving there at about 2:45 p.m. Upon his arrival at the police station, the defendant's clothes were seized.

At about that time, Detective Juan Rocha was assigned, along with Det. Novotny, to interview the defendant. Det. Rocha introduced himself to the defendant and told the defendant that he spoke Spanish. The defendant was then moved to an interview room located in the detective bureau. The room is approximately eighteen feet by eight feet. The room has a table and four chairs in it. During the interview, only the defendant and Detectives Rocha and Novotny were present. The defendant was uncuffed when he entered the interview room.

Det. Rocha began the interview by telling the defendant that they were investigating a homicide. He then asked the defendant to write his name, address and date of birth on a piece of paper. The defendant did so. According to Det. Rocha, the defendant appeared to understand English and was responsive to his questions. The defendant was given water and allowed to use the bathroom. The detectives then left the defendant alone in the interview room for approximately fifteen minutes.

Det. Rocha noticed that the defendant had what appeared to be dried blood on his lips. Further, he and Det. Novotny noticed fresh cuts and scratches on the defendant's hands and arms. Det. Rocha, who was seated immediately next to the defendant, also detected a slight odor of alcohol coming from the defendant.

At approximately 3:35 p.m., the detectives returned to the interview room. Det. Rocha then informed the defendant of his Miranda rights in English, reciting them from memory. The defendant acknowledged that he understood the rights. Again from memory, Det. Rocha advised the defendant of his rights in Spanish. Once again the defendant acknowledged that he understood the rights. According to Det. Rocha, the defendant appeared coherent and appeared to understand his rights. The defendant then explicitly agreed to speak with the detectives.

Detective Rocha then conducted a question and answer session with the defendant. The conversation took place in both Spanish and English. The defendant told the detectives that he spoke English, and according to the detectives it was clear that the defendant understood and spoke English. Then defendant then gave an account of his day, repeatedly denying that he was [*4]in the house.

Less than an hour into the interview, the defendant was asked to provide a saliva sample to the detectives. The detectives explained that the sample would be used in a DNA comparison with evidence collected in the investigation. Det. Rocha read a consent form to him in English and Spanish. The defendant was then given an opportunity to read the form which was written in English. The defendant then indicated that he understood the form and understood that the sample would go to the lab for testing. He stated that he consented to having the sample taken, explaining that since he was never in the house it would not be a problem for him to provide a sample. The defendant then signed the consent form. A short while later, Detective Elmendorf entered the interview room and took buccal swabs from the defendant.

The interview continued until approximately 8:00 p.m. At about that time, the defendant stated that he wanted a lawyer. The detectives immediately ceased questioning the defendant. Sometime after the interview ceased, the detectives learned from the defendant, without elaboration, that he attended high school in Guatemala. Although an earlier description broadcast by the department described the defendant as being Guatemalan, according to the detectives, they were never informed, and never learned that the defendant was a Guatemalan national until his passport was recovered from his home on May 3, 2005. Further, even the defendant's identity was not confirmed until that time. The only information the detectives possessed was the fact that he had presented a California driver's license when he was hired by Mr. Collister. During the time he was held by the Clarkstown Police, the defendant was not notified of his right of nor did he ever request access to the Guatemalan Consul.

Throughout the four and a half hour interview process, the defendant used the bathroom two or three times, he was given water and was offered a meal. The defendant was given many breaks during the questioning. According to the detectives he was made comfortable. He was not threatened or coerced.

At about 8:00 p.m, Detective Gary McDonald called Ms. Fallon and requested that she come to the police station to view a line-up. Earlier that day he told her she might have to return to view a line-up. At no time did he tell Ms. Fallon that there was an arrestee or a suspect in the line-up. Ms. Fallon met him in a rear parking lot and was escorted in the back door of the station. She was placed in a room separated from the main area of the Detective Bureau and the interview room. Prior to viewing the line-up, she had no opportunity to view the defendant or the fillers.

The line-up was conducted in the interview room. The defendant and the fillers wore identical clothing. The defendant was allowed to pick his seat position in the line-up. The defendant chose seat four. The fillers took the remaining seats. A yellow blanket was used to cover all of the participants' legs. The line-up was then photographed.

Ms. Fallon viewed the line-up through an observation mirror. Upon being asked if she recognized anyone from the incident, she stated "I think it might be number four." She further stated "I think he looks familiar." The line-up was then concluded.

"Probable cause to arrest requires the existence of facts and circumstances which, when viewed as a whole, would lead a reasonable person possessing the same expertise as the arresting officer to conclude that an offense has been or is being committed and that the defendant [*5]committed or is committing that offense." People v. Hicks, 287 AD2d 649 (2nd Dep't 2001). In order for the police to have probable cause to arrest a suspect, the officer must have a "sufficiently specific and detailed description and circumstances that would lead a police officer to reasonably conclude that the defendant was the perpetrator of the crime." People v. Harris, 222 AD2d 711 (2nd Dep't 1996).

In the instant case, Officer Alemi and Det. Novotny each had a detailed and specific physical and clothing description of the suspect. Id.; People v. Green, 168 AD2d 457 (2nd Dep't 1990). With the exception of the clothes, the defendant clearly matched that description. People v. Boyd, 156 AD2d 701 (2nd Dep't 1989). See also People v. Jackson, 282 AD2d 473 (2nd Dep't 2001); People v. Green, 168 AD2d 457 (2nd Dep't 1990). Further, as the defendant approached Det. Novotny, he observed what appeared to be bloodstains on the defendant's clothes. Based upon the very bloody condition of the crime scene, that fact supports the conclusion that the defendant was the perpetrator.

In addition to the defendant having matched the detailed description, his behavior, as observed by Officer Alemi, contributed to the pool of information forming the basis of the probable cause determination. While flight alone is not dispositive, it is a factor to be considered in making a probable cause determination. People v. Howard, 50 NY2d 583 (1980). The defendant's flight, when coupled with his having matched the description, clearly supports a finding of probable cause. People v. Torres, 236 AD2d 431 (2nd Dep't 1997); People v. Randolph, 181 AD2d 801 (2nd Dep't 1992). See also People v. Whittaker, 168 AD2d 656 (2nd Dep't 1990). Likewise, the defendant's furtive behavior and attempts at hiding, when coupled with a match of the description, support a finding of probable cause. People v. Torres, 236 AD2d 431 (2nd Dep't 1997); People v. Rosa, 231 AD2d 534 (2nd Dep't 1996); People v. Johnson, 174 AD2d 694 (2nd Dep't 1991).

At that point, there was probable cause to arrest the defendant. However, at the time Det. Novotny told the defendant to stop and lay on the ground, he had conducted only a "stop" of the defendant requiring only reasonable suspicion. People v. Debour, 40 NY2d 210 (1976). Based upon the facts known to Det. Novotny about the nature of the crime, the fact that he had his weapon drawn and that he directed the defendant to the ground does not transform an investigative stop into a full blown custodial arrest. People v. Clark, 172 AD2d 679 (2nd Dep't 1991); People v. Mateo, 122 AD2d 229 (2nd Dep't 1986); People v. Pitt, 110 AD2d 723 (2nd Dep't 1985). See also People v. Allen, 73 NY2d 378 (1989).

As Det. Novotny approached the defendant as he lay on the ground, he observed dried blood around the defendant's mouth. Further, Det. Novotny confirmed the suspect's name to be "Douglas Herrera." People v. Burton, 194 AD2d 683 (2nd Dep't 1993); People v. Boyd, 156 AD2d 701 (2nd Dep't 1989). Therefore, it is clear that Det. Novotny had probable cause to arrest the defendant.

The seizure of the defendant's clothes was also proper. See People v. Moss, 22 AD3d 329 (1st Dep't 2005); People v. Jones, 298 AD2d 404 (2nd Dep't 2002). While due to the timing of the seizure it cannot be said that the clothes were seized incident to arrest, they were properly seized under the plain view doctrine.

To fall under the plain view exception, three criteria must be met. People v. Brown, 96 NY2d 80, 89 (2001). First, the police must lawfully be in the position from which they observe [*6]the item. Id. Second, the police must have lawful access to the item in order to seize it. Id. Finally, the incriminating character of the item must be immediately apparent. Id.

Here the first two criteria are easily met. As detailed above, the arrest of the defendant was lawful. The police clearly could observe the blood stained clothes from a legal vantage point. Likewise, they clearly had access to the defendant and his clothes. The defendant has no cognizable privacy interest in the holding cell.

Finally, the potential evidentiary value of the blood stained clothes is readily apparent. During the incident, the victim was brutally cut and beaten. The master bedroom and the victim were covered in large amounts of blood. The clear relevance of the fact that the defendant had bloodstains on his clothes was manifest.

Accordingly, the defendant's clothes were lawfully seized.

The saliva sample was also properly obtained. The defendant voluntarily consented to the buccal swabs being taken.

The People bear the burden of establishing that the defendant's consent to search was voluntary. People v. Gonzalez, 88 NY2d 289 (1996); People v. Gonzalez, 39 NY2d 122 (1976). The determination of whether the consent was voluntary must be made in light of the circumstances attendant to the consent. Id. See also People v. Alvaranga, 190 AD2d 286 (2nd Dep't 1993); People v. Richards, 119 AD2d 597 (2nd Dep't 1986).

An important factor is whether the defendant was in custody at the time of the consent. People v. Gonzalez, 39 NY2d 122 (1976); People v. King, 222 AD2d 699 (2nd Dep't 1995); People v. Betancur, 123 AD2d 777 (2nd Dep't 1986). However, this factor is not dispositive. People v. Gonzalez, 39 NY2d 122 (1976). Other factors include: the number of officers present, the defendant's criminal history and background, the cooperation of the defendant prior to the consent and the advisement of the right to refuse to consent. Id.

The circumstances surrounding the interrogation were not so overbearing as to render the consent involuntary. There was a single officer speaking to the defendant in a public area. The defendant was apprised of his Miranda rights. Further, there is no evidence that the defendant was in any way threatened or coerced into giving the consent.

While it is clear that the defendant was in custody, he had only been in custody less than two hours when the consent was given. With respect to the other factors, it should be noted that this was not the defendant's first contact with law enforcement. At the time the consent was executed, the defendant was in the presence of only two officers. He had not been handcuffed, threatened or coerced. People v. King, 222 AD2d 699 (2nd Dep't 1995).

Additionally, the defendant appeared highly cooperative. People v. Gonzalez, 39 NY2d 122 (1976); People v. King, 222 AD2d 699 (2nd Dep't 1995); People v. Betancur, 123 AD2d 777 (2nd Dep't 1986). Whether through a genuine desire to assist the police, or as a tactic to avoid suspicion, the defendant expressed a desire to assist in the investigation and manifested his cooperation by readily agreeing to provide a saliva sample. People v. Alvaranga, 190 AD2d 286 (2nd Dep't 1993); People v. Li, 235 AD2d 211 (1st Dep't 1997). Therefore, the defendant's consent was "more likely to be the product of calculation than awe." People v. Gonzalez, 39 NY2d 122, 129 (1976). See also People v. Ruiz, 188 AD2d 495 (2nd Dep't 1992).

Finally, prior to signing the permission to search form, the defendant was advised that his consent was voluntary. In fact, the form itself, above the defendant's signature, expressly stated [*7]that consent may be refused. People v. Gonzalez, 39 NY2d 122 (1976); People v. Auxilly, 173 AD2d 627 (2nd Dep't 1991). Additionally, the defendant was adequately apprised of his Miranda rights prior to consenting to providing the sample.

Accordingly, based upon the totality of the circumstances, the People have met their burden of establishing that the defendant's consent was voluntary.

The defendant was adequately apprised of his Miranda rights prior to making the statement. See generally, People v. Hutchinson, 59 NY2d 923 (1983); People v. Burton, 191 AD2d 703 (2nd Dep't 1993). Further, the warnings were adequately administered in both Spanish and English. People v. Rodriguez, 208 AD2d 871 (2nd Dep't 1994); People v. Sirno, 152 AD2d 621 (2nd Dep't 1989). The fact that the defendant was advised orally does not invalidate the administration of the warnings, as the oral warnings adequately conveyed the defendant's rights. People v. Vega, 225 AD2d 890 (3rd Dep't 1996); People v. Anderson, 146 AD2d 638 (2nd Dep't 1989); People v. Jordan, 110 AD2d 855 (2nd Dep't 1985). See also People v. Bugman, 254 AD2d 796 (4th Dep't 1998).

The evidence further demonstrates that the defendant knowingly and voluntarily waived his rights. People v. Sirno, 76 NY2d 967 (1990); People v. Davis, 55 NY2d 731 (1981). The defendant orally indicated his willingness to speak to the police. Further, the fact that the defendant spoke to police after having been informed of his rights and admitted understanding the rights is sufficient evidence that the defendant tacitly waived his rights. Id.

There is no evidence in the record that the defendant either asked for an attorney or invoked his right to silence prior to the point at which the questioning ceased. Additionally, there were no factors present that would render the statement involuntary under the totality of the circumstances. People v. Anderson, 42 NY2d 35 (1977); People v. Werner, 284 AD2d 419 (2nd Dep't 2001); People v. Johnson, 269 AD2d 405 (2nd Dep't 2000). The defendant was provided with water and allowed to use the bathroom. He was offered a meal. He was given several breaks during the interrogation. The police did not make any promises and did not threaten or coerce him.

Defendant also contends that suppression is warranted on the grounds of the alleged violation of Article 36 of the Vienna Convention on Consular Relations and optional protocol on disputes [hereinafter "Vienna Convention"].

The Vienna Convention, is a 79 Article agreement between 168 signatory nations, including the United States. It was designed, at least in part, to contribute to friendly relations between nations and promote consular efficiency. As it was an international treaty made by the President and ratified by the Senate, it thus enjoys equal status to any federal law. The treaty itself contains no express remedies for violations. An analysis of a treaty's meaning begins with the text of the treaty and the contextual purpose of its objectives, in this case, the rights and obligations of the signatories concerning consular relations.

Defendant has not briefed this issue and or supplied any legal authorities to the Court in support of his contention. In view of the importance of the issue the Court believes it is necessary to provide a full record of its reasoning in this regard since the Supreme Court of the United States has granted certiorari in a case involving almost identical facts and issues. Moises [*8]Sanchez-Llamas v State of Oregon, 2005 WL2922485 (U.S. 2005).

Article 36 of the Vienna Convention provides in pertinent part that: "consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State" and "if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner." The article also provides that "[t]he said authorities shall inform the person concerned without delay of his rights under this sub-paragraph."(emphasis added).

The United States has stated that consulate notification was as important to foreign nationals in the United States, as it was to United States citizens abroad Breard v Netherland, 949 F. Supp. 1255 (E.D. Va. 1996). Consulate notification generally serves to ensure that a foreign national has access to an official representative of that person's native country who can explain the rights of a criminal defendant in the United States, most notably the right to legal counsel and the right to remain silent.

In Sanchez-Llamas, supra , the Petitioner contends that treaties can and do apply to criminal proceedings, and create rights which are judicially enforceable by an individual Head Money Cases, 112 U.S. 580 (1884); Jordan v Tashiro, 278 U.S. 123 (1928)

In Sanchez-Llamas, supra , the Petitioners contended that the Supreme Court has not limited the use of the exclusionary rule to only Constitutional violations, as Respondents contend, but has suppressed evidence in circumstances where the integrity of the criminal proceeding was jeopardized. Miller v United States, 357 U.S. 301 (1958). Petitioners argue that even if a statute does not expressly provide for suppression, or where Congress has not explicitly forbidden the use of evidence procured in willful disobedience of law, the exclusionary rule should be employed to deter future illegalities and vindicate rights afforded under the Constitution, federal statutes or federal rules of procedure United States v Blue, 384 U.S. 251(1966); Mallory v United States, 354 U.S. 449(1957).

Both sides claim that the International Court of Justice (ICJ) decisions support their respective positions. Petitioners assert that under International Law the Vienna Convention provides a judicial remedy for violations of Article 36 Rights to Consular notification and Access Avena et al (Mexico v U. S.) 2004 1C.J. No. 128.

The Respondents in Sanchez-Llama, supra , argue that the ratification history of the Vienna Convention does not establish a right to information that is enforceable by an individual in a domestic criminal proceeding. United States v Stuart, 489 U.S. 353, 365 -368 (1989). The Respondents contend that the practice of other signatories to the treaty confirms they did not intend to create a right of suppression for violation under Article 36.

The Sanchez-Llamas Respondents further argue that even where the ICJ has concluded that Article 36 creates individual rights, those rights were not enforceable by an individual, but rather served as the basis for one signatory nation to bring an enforcement action against another signatory nation. La Grand, 2001 1CJ Paragraph 77, at 493; and Avena, paragraph 40.

The Sanchez-Llamas Petitioners further contend that Miranda warnings are not an effective substitute for the right of notification provided by Article 36. They argue that while [*9]Miranda noted the psychologically coercive aspects of custodial interrogation, the Vienna Convention conference delegates noted the particular pressures on a detained foreign national and therefore fashioned a discrete notification mechanism designed to redress the particular coercive aspect unique to their situation. They claim a consular officer's ability to bridge the cultural gap between the foreign national and the local authorities is precisely the kind of remedial assistance that the Vienna Convention intended to be made

available to the detained foreign national. They argue that the government bears the burden of persuasion in criminal prosecutions and therefore has the burden of establishing the admissibility of statements following an Article 36 violation.

The Sanchez-Llamas Respondents reply that the text, context and history of the treaty do not support the creation of an individual enforceable right of suppression by a foreign national in a domestic criminal proceeding, especially where there has been no showing of prejudice whatsoever. They argue that the promotion and advancement of international law is a laudatory goal but that aspirational language does not establish enforceable rights and that treaties are enforceable only to the extent they impose concrete obligations. INS v Stevic, 467 U.S. 407 (1984). The Sanchez-Llamas Respondents further contend that the treaty materials establish that the obligation to inform under Article 36 is satisfied if the information is provided within 24 - 48 hours after the authorities determine an individual is a foreign national. However, an Article 36 violation notification may play a role in a criminal proceeding perhaps as a factor to consider in determining whether a defendant's waiver of Miranda rights and his subsequent statements were voluntary.

The United States Supreme Court granted certiorari, to address only the two basic points regarding the applicability of Article 36 to domestic criminal cases. Sanchez-Llamas v. Oregon, __ U.S. ___, 126 S. Ct. 620 (2005). First, the Court will decide whether Article 36 confers individually enforceable rights upon a criminal defendant. If it decides such a right exists, the Court will determine whether a violation of the notification provision mandates suppression.

While the Supreme Court has heard oral argument in the case, it has yet to issue a decision. Therefore, this Court must proceed based upon the precedents established thus far, rather than a prediction of what the U.S. Supreme Court will hold.

As a threshold matter, it must be determined if there was a violation of the notification provision of Article 36. In this case, this Court holds that there was no actionable "delay" in apprising the defendant of his right to consular notification prior to the interrogation of the defendant.

Any individual right conferred by the Vienna Convention is not akin to Miranda and not linked to the commencement of police interrogation. U.S. v. Lombera-Camorlinga, 206 F.3d 882, 886 (9th Cir. 2000). Further, notice pursuant to this section has been held to be timely if made between 24 hours and 72 hours after arrest. See U.S. v. Ore-Irawa, 78 F. Supp. 2d 610 (E.D. Mich. 1999). In this case, the interrogation was completed within six hours after the arrest. Therefore, any alleged delay in notification did not affect the interrogation. [*10]Further, there was no direct evidence adduced at the hearing that the officers knew or should have known that the defendant was a foreign national. Although, one of the broadcast descriptions included the fact that the defendant was Guatemalan, the source of that information is unknown, as is whether the term Guatemalan was used generically to apply to the class of day laborers commonly employed by contractors. The defendant never informed the police that he was a citizen of Guatemala. Prior to the interview with the defendant, the only substantiated information the police had was that the defendant may have been from California.

The police did not confirm the defendant's identity and national origin until several days after the arrest. Further, it wasn't until the interrogation was concluded that the police learned that the defendant went to high school in Guatemala. Even then, the police could not assume that the defendant was a foreign national and that he had not become a naturalized citizen. Therefore, right to notification was not triggered until the police knew or had reason to know that the defendant was a foreign national. In this case, that occurred when the police executed the search warrant at the defendant's residence several days after the arrest.

Accordingly, there was no actionable delay, as that term is applied to analysis under the Vienna Convention, in advising the defendant about his right to contact the Guatemalan Consul.

Further, even assuming a violation, the defendant would nevertheless not be entitled to suppression.

State and federal courts are split as to whether Vienna Convention conveys legally enforceable rights to aggrieved individuals. In Breard v. Greene, 523 U.S. 371 (1998), the U.S. Supreme Court stated that the Vienna Convention "arguably confers upon an individual the right to consular assistance." Id. at 376 (emphasis added). The Supreme Court has recently granted certiorari in two cases to decide the issue. Sanchez-Llamas v. Oregon, 126 S. Ct. 620 (2006); Bustillo v. Johnson, 126 S. Ct. 621 (2006).

Several U.S. Circuit Courts have held that the Vienna Convention does grant an individually enforceable right. E.g., Jogi v. Voges, 425 F.3d 367 (7th Cir. 2005); United States v. De La Pava, 268 F.3d 157, 165 (2d Cir.2001). Likewise, several state courts have recognized an individuals right to raise a violation of the convention. However, several circuits have found, in the context of a criminal proceeding, that the treaty does not confer individual rights. E.g., United States v. Emuegbunam, 268 F.3d 377, 394 (6th Cir.2001); United States v. Jimenez-Nava, 243 F.3d 192, 198 (5th Cir.2001). The courts of several states have adopted that position. The majority of courts have adopted a position that avoids resolution of the issue by holding that regardless of whether individual right exists under the Vienna Convention the various remedies available to criminal defendants, such as the quashing of an indictment or the exclusionary rule, are not appropriate cures for a violation. United States v. Li, 206 F.3d 56, 60 (1st Cir. 2000)( en banc) ("We hold that irrespective of whether or not the treaties create individual rights to consular notification, the appropriate remedies do not include suppression of evidence or dismissal of the indictment."); United States v. De La Pava, 268 F.3d 157, 165 (2d Cir.2001) ("Even if we assume arguendo that De La Pava had judicially enforceable rights under the Vienna Conventiona position we do not adoptthe Government's failure to comply with the consular notification provision is not grounds for dismissal of the indictment."); Murphy v. Netherland, 116 F.3d 97, 100 (4th Cir.1997) (finding that "even if the Vienna Convention on [*11]Consular Relations could be said to create individual rights" the defendant could not obtain habeas relief because his claim was procedurally defaulted); United States v. Page, 232 F.3d 536, 541 (6th Cir.2000) (concluding that "although some judicial remedies may exist, there is no right in a criminal prosecution to have evidence excluded or an indictment dismissed due to a violation of Article 36"); United States v. Chaparro-Alcantara, 226 F.3d 616, 621 (7th Cir.2000) ("It is sufficient for present purposes to assume that such an individual right is created by the Convention and to confront squarely whether the exclusionary rule is the appropriate sanction for a violation of that right."); United States v. Ortiz, 315 F.3d 873, 886 (8th Cir.2002) ("Even if we assume for present purposes that the Convention creates an individually enforceable right, it would not follow, on this record, that the statements should be excluded merely because the Convention has been violated."); United States v. Lombera-Camorlinga, 206 F.3d 882, 885 (9th Cir.2000) (en banc) (declining to decide whether Article 36 creates an individually enforceable right but concluding that suppression of evidence is an inappropriate remedy); United States v. Minjares-Alvarez, 264 F.3d 980, 986-87 (10th Cir.2001) (assuming that the treaty grants individually enforceable rights, suppression is not an appropriate remedy).

Like those Courts, this Court can address the suppression issues relevant to the instant case without resolving the issue of whether the defendant has standing to raise the issue of a violation to the Vienna Convention.

The holdings of the Courts that hold or assume there is enforceable right fall into two categories.

The first category are those that hold that suppression is never a proper remedy for a violation of the notification provision. See United States v. Contreras-Cortez, 41 Fed. Appx. 252 (10th Cir. 2002) (holding that even if the Vienna Convention creates individual rights, suppression is not an available remedy for violations of it); United States v. Felix-Felix, 275 F.3d 627, 635 (7th Cir. 2001); United States v. Page, 232 F.3d 536, 541 (6th Cir. 2000), cert. denied, 532 U.S. 1056 (2001) (indicating the remedies available, in the opinion of the State Department, are diplomatic in nature); United States v. Duarte-Acero, 296 F.3d 1277, 1282 (11th Cir. 2002) (relying on the State Department's interpretation that remedies under Article 36 are only "diplomatic, political, or derived from international law"). U.S. v. Lombera-Camorlinga, 206 F.3d 882 (9th Cir. 2000);. United States v. Cowo, 22 Fed.Appx. 25, (1st Cir. 2001). United States v. Carrillo, 269 F.3d 761, 771 (7th Cir. 2001), cert. denied, 122 S. Ct. 1576, 152 L. Ed. 2d 496 (2002); United States v. Li, 206 F.3d 56, 60 (1st Cir. 2000) (en banc), cert. denied, 531 U.S. 956 (2000)). United States v. Chaparro-Alcantara, 226 F.3d 616, 621 (7th Cir. 2000), cert denied, 531 U.S. 1026 (2000); United States v. Cordoba-Mosquera, 212 F.3d 1194, 1196 (11th Cir. 2000), cert. denied, 531 U.S. 1131 (2001). See also Bell v. Commonwealth, 563 S.E.2d 695 (Va. 2002); Conde v. State, 860 So. 2d 930 (Fla. 2003). These holdings are consistent with the U.S. State Department interpretation of the Vienna Convention. See United States v. Duarte-Acero, 296 F.3d 1277, 1282 (11th Cir. 2002); United States v. Page, 232 F.3d 536, 541 (6th Cir.2000) "[I]n resolving doubts the construction of a treaty by the political department of the government, while not conclusive upon courts called upon to construe it, is nevertheless of weight. Factor v. Laubenheimer, 290 U.S. 276, 295 (1933). Nevertheless, there is a second category of cases. Those cases hold that [*12]assuming an individual has standing to raise a violation of the treaty, there may be a remedy. However, those courts have noted that in order to seek suppression as a remedy for a violation of Article 36 of the Vienna Convention, actual prejudice must be shown. See, e.g., United States v. Ademaj, 170 F.3d 58, 67 (1st Cir.1999); United States v. Esparza-Ponce, 193 F.3d 1133, 1138 (9th Cir.1999); see also United States v. Ediale, 1999 WL 991435 (4th Cir.1999); United States v. Chanthadara, 230 F.3d 1237, 1256 (10th Cir. 2000), cert denied, 122 S. Ct. 457, 151 L. Ed. 2d 376 (2001) ("Even presuming the Vienna Convention creates individually enforceable rights, Mr. Chanthadara has not demonstrated that denial of such rights caused him prejudice.")). See also Nunez-Medina v. State, 817 So. 2d 937, 939 (Fla. Dist. Ct. App. 2002) (stating that even if suppression were an available remedy, a showing of prejudice would have to be made); People v. Ortiz, 2002 WL 937642,(Cal. Ct. App. 2002).

In the case of State v Reyes 1999 WL 743598 the Delaware court granted the defendant's motion to suppress his statements on the ground they were involuntary since the defendant was not advised of his right of notification under Article 36. No other court seems to have subscribed to this position or followed its literal interpretation.

In the limited number of cases addressed by the Appellate Divisions in New York, it appears that there is a split as to whether suppression is a remedy if prejudice is demonstrated. Compare People v. Ortiz, 287 AD2d 518 (1st Dep't 2001)("a violation of the consular notification provision provides no basis for suppression of a statement") with People v. Elkady, 287 AD2d 518 (2nd Dep't 2001)("no remedy is required in the absence of a showing of prejudice"). The Court of Appeals has not addressed the issue.

Even using the most liberal standard, that which happens to be the law of this judicial department, that which assumes an individually enforceable right and allows suppression upon a showing of prejudice, the defendant would still not be entitled to suppression.

In order to show actual prejudice due to an alleged deprivation of notification due under the Vienna Convention, a defendant must show (1) that he did not know of his right to consular assistance; (2) that he would have availed himself of that right; and (3) that there was a likelihood that the contact with the consul would have resulted in assistance to him. See Esparza-Ponce, 193 F.3d 1133, 1138(9th Cir. 1999) (quoting United States v. Rangel-Gonzales, 617 F.2d 529, 533 (9th Cir.1980)); U.S. v. Ore-Irawa, 78 F. Supp. 2d 610 (E.D. Mich. 1999);United States v. Alvarado-Torres, 45 F.Supp.2d. 986, 990 (S.D.Cal.1999); U.S. v. Tapia-Mendoza, 41 F. Supp. 2d 1250 (D.Utah 1999).

"Defendant's motion did not allege, much less did the evidentiary hearing establish, the existence of any of these factors." U.S. v. Ore-Irawa, 78 F. Supp. 2d 610 (E.D. Mich. 1999). The defendant did not present any evidence regarding his knowledge of his right to consular notification or whether he would have availed himself of the right. "Most notably, there has been no showing that had [defendant] contacted the consular post, assistance would have been provided. Id. As the defendant failed to meet his burden in establishing any of the factors relevant to a finding of prejudice, the statements cannot be suppressed on those grounds. U.S. v. Juarez-Yepez, 202 F.3d 279 (9th Cir. 1999).

Suppression of an otherwise voluntary post arrest statement is not an appropriate remedy [*13]for an alleged Article 36 notification violation where no prejudice was demonstrated. U.S. v Valdez,104 Fed. Appx. (2004); U.S. v Gamez, 301 F.3d 1138 (2002); Ramirez v State 279 GA. 569 (2005); State v Navarro, 659 N.W. 2nd 487 (2003). Therefore, the defendant's motion to suppress the statements is denied.

The Court has considered the testimony regarding the conduct of the lineup and has examined a photograph of the lineup. The Court has found nothing unduly suggestive in the conduct or composition of the lineup. It is well settled that there is no requirement that fillers possess identical physical attributes. People v. Chipp, 75 NY2d 327 (1990); People v. Briggs, 202 F.3d 279 (2nd Dep't 2001); People v. Odom, 278 AD2d 344 (2nd Dep't 2000); People v. Nolan, 277 AD2d 400 (2nd Dep't 2000); People v. Foster, 272 AD2d 410 (2nd Dep't 2000). In this case, there were no differences in the appearances of the fillers from the defendant that would create a substantial likelihood that the defendant would be singled out. Id. Additionally, there were no irregularities in the conduct of the lineup that would cause a risk of creating an unduly suggestive procedure. No improper suggestions were made to the witness either before or during the line-up. Further, the witness was not exposed to the defendant or the fillers prior to the line-up.

Accordingly, the motion to suppress the identification procedure is denied.

In addition to the suppression issues, the Court entertained the People's motion in limine to introduce a hearsay statement of the victim. The People seek to introduce a statement made to Ms. Fallon during a telephone conversation she had with the victim at approximately 8:50 a.m. The victim concluded the conversation by telling Ms. Fallon that she had to go because the man doing the power washing wanted to speak to her. The People seek to introduce this statement under both the state of mind and present sense impression exceptions to the hearsay rule.

In the seminal United States Supreme Court case of Mutual Life Insurance Company of New York v. Hillmon, 145 U.S. 285 (1892), the Court held that extrajudicial statements of the declarant's intent to engage in some future behavior is competent evidence that the declarant did in fact engage in that behavior. "[W]henever the intention is of itself a distinct and material fact in a chain of circumstances, it may be proved by contemporaneous oral or written declarations of the party." Id. at 295. In Hillmon, the Court held that two letters written by Frederick Walters indicating his intention to go to a place called Crooked Creek with John Hillmon were admissable. Id. The Court held that the letters were admissible not only that Walters went to Crooked Creek, but also that he went with Hillmon. Id.

In a case of first impression for the New York Court of Appeals, the Court specifically adopted the Hillmon doctrine. People v. James, 93 NY2d 620 (1999). In James, the Court held that the declarant's statement to a third party that the declarant would meet the third party, another party and the defendant at a future time and place is admissible against the defendant as proof that the meeting between the four parties took place at the time and place described in the statement. Id. at 631. The Court of Appeals' expansive interpretation of Hillmon allows the imputation of the declarant's future intent to prove the subsequent actions of the defendant, even [*14]though the defendant was not a participant in the conversation. Id.

"Under the state of mind exception to the hearsay rule, a declarant's statement that he intends to meet another is admissible where the statements are made under circumstances that make it probable that the expressed intent [is] a serious one, and that it [is] realistically likely that such a meeting would take place.'" People v. Bernard, 214 AD2d 578 (2nd Dep't 1995)(quoting People v. Malizia, 92 AD2d 154 (1st Dep't 1984). See also People v. Toland, 284 AD2d 798 (3rd Dep't 2001); People v. Maldoni, 214 AD2d 325 (1st Dep't 1995); People v. Bongarzone, 116 AD2d 164 (2nd Dep't 1986).

In the instant case, the statement of Mary Nagle to her sister clearly falls within this exception, as she clearly expressed her intention to meet with the power washer. Based upon the circumstance surrounding the statement, "it [is] realistically likely that such a meeting would take place" and "that the expressed intent [is] a serious one." Mary Nagle terminated her telephone conversation for the express purpose of meeting the power washer. Further, the execution of the stated intention is one that could be carried out easily and immediately.

Additionally, Mary Nagle's statement falls under the present sense impression exception to the hearsay rule.

The Court of Appeals adopted the present sense impression in People v. Brown, 80 NY2d 729 (1993). "[W]e hold that spontaneous descriptions of events made substantially contemporaneously with the observations are admissible if the descriptions are sufficiently corroborated by other evidence." Id. at 735. Presence sense impressions "are descriptions of events made by a person who is perceiving the event as it is unfolding. They are deemed reliable not because of the declarant's excited mental state but rather because the contemporaneity of the communication minimizes the opportunity for calculated misstatement as well as the risk of inaccuracy from faulty memory." People v. Vasquez, 88 NY2d 561, 574 (1996). See also People v. Melendez, 296 AD2d 424 (2nd Dep't 2002).

"What corroboration is sufficient will depend on the particular circumstances of each case and must be left largely to the sound discretion of the trial court. But before present sense impression testimony is received there must be some evidence in addition to the statements themselves to assure the court that the statements sought to be admitted were made spontaneously and contemporaneously with the events described." People v. Brown, 80 NY2d 729, 737 (1993). "[T]here must be some independent verification of the declarant's descriptions of the unfolding events." People v. Vasquez, 88 NY2d 561, 576 (1996). "[T]he critical inquiry should be whether the corroboration offered to support admission of the statement truly serves to support its substance and content." Id.

The circumstances surrounding the event make clear that Mary Nagle's observation that the power washer wanted to speak with her was made as she observed him or very shortly thereafter. Further, the People have indicated a number of facts that clearly corroborate the fact that the power washer was present at the time of the phone call and subsequently inside the house.

Accordingly, the proffered statement falls under the present sense impression exception to the hearsay rule. Therefore, the statement falls under two recognized exceptions to the hearsay [*15]rule.[FN2]

The fact that the statement falls under two recognized hearsay exceptions does not end the inquiry. Admission of the statement may nevertheless violate the Confrontation Clause.

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that "[t]estimonial statements of witnesses absent from trial [are admissible] only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." Id. at 59. In reaching that holding, the Supreme Court rejected its prior holding in Ohio v. Roberts, 448 U.S. 56 (1980).

Under the standard set forth in Ohio v. Roberts, hearsay evidence was admissible if it fell under a "firmly rooted hearsay exception" or bore "particularized guarantees of trustworthiness." Id. at 66. The Roberts rule made no differentiation between testimonial and non-testimonial hearsay.

In rejecting that approach, the Crawford Court found that "[a]dmitting statements deemed reliable by a judge is fundamentally at odds with the right to confrontation." Crawford v. Washington, 541 U.S. 36, 61 (2004). "Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes." Id. at 62.

In rejecting the Roberts approach, the Court held that while reliability may be the touchstone underlying hearsay exceptions, the Roberts Court's failure to distinguish between testimonial from non-testimonial hearsay made it unworkable in that it failed to address the Confrontation Clause. The Court clearly held that the analysis of whether a statement falls under a hearsay exception and whether the admission of a statement violates the Confrontation Clause are separate and distinct. "An off-hand, overheard remark might be unreliable evidence and thus a good candidate for exclusion under hearsay rules, but it bears little resemblance to the civil-law abuses the Confrontation Clause targeted. On the other hand, ex parte examinations might sometimes be admissible under modern hearsay rules, but the Framers certainly would not have condoned them." Id. at 51.

Therefore, once it is established that a statement falls under a hearsay exception, a separate analysis of the confrontation issues must be conducted.

The Crawford decision bars only the admission of testimonial hearsay without the benefit of cross examination of the declarant prior to or during trial. If a statement is non-testimonial, the Confrontation Clause is not implicated.

The Crawford Court did not define "testimonial." As the Court stated, "various formulations of this core class of "testimonial" statements exist. In its decision, the Court reviewed several proposed definitions. Under the first proposed definition, testimonial statements include "ex parte in-court testimony or its functional equivalentthat is, material such [*16]as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially." Id. at 51. The second definition was "extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions" Id. at 52 (quoting White v. Illinois, 502 U.S. 346, 365, 112 S. Ct. 736, 116 L. Ed. 2d 848 (1992) (THOMAS, J., joined by SCALIA, J., concurring in part and concurring in judgment)) Finally, the Court considered "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Id. at 52.

While the Court did not adopt one of those definitions in favor of the others, the Court concluded that each attempt at a definition of "testimonial" shared a common theme useful in categorizing hearsay statements. "These formulations all share a common nucleus and then define the Clause's coverage at various levels of abstraction around it. Regardless of the precise articulation, some statements qualify under any definitionfor example, ex parte testimony at a preliminary hearing." Id. "Statements taken by police officers in the course of interrogations are also testimonial under even a narrow standard." Id.

Under the "standard" set forth in Crawford, it is clear that the statement at issue in the instant case is not testimonial. Testimonial statements involve a level of formality, government involvement or awareness of subsequent use at trial that the instant case does not. The victim's statement to her sister was " a casual remark to an acquaintance.'" People v. Goldstein, __ NY2d __, 2005 WL 3477726 (2005). The statements do not bear the hallmarks of a formal statement or one which in any way could be "used prosecutorially." Id.

A number of recent decisions have found that telephone calls to 911 were not testimonial despite the fact that they were made to a government entity and could reasonably be foreseen to be used in a criminal prosecution. People v. Marino, 21 AD3d 430 (2nd Dep't 2005); People v. Cato, 22 AD2d 863 (2nd Dep't 2005). See also People v. Diaz, 21 AD3d 58 (1st Dep't 2005); People v. Coleman, 16 AD3d 254 (1st Dep't 2005).

The statement at issue here is even less formalized than those involving 911 calls. Unlike the cases involving 911 calls, the instant case does not involve government participation in the conversation. The statement was clearly not formal in nature. As a crime had not yet been committed, its subsequent use in a criminal prosecution could not be foreseen. It follows a fortiori that the statement in the instant case is non-testimonial. See also People v. Rivera, 8 AD3d 53 (1st Dep't 2004)(holding excited utterance identifying assailant made during victim's telephone call to sister was non-testimonial); People v. Paul, 25 AD3d 165 (1st Dep't 2005)(holding that dying declaration was not testimonial under any definition).

Accordingly, the Confrontation Clause is not violated by the admission of the statement. Therefore, the contents of the phone call between Mary Nagle and Ann Fallon is admissible.

The People have also moved in limine for a ruling on the admissibility of the contents of certain phone calls. The People have made an offer of proof regarding the contents of several phone calls allegedly made by the defendant following the incident, utilizing the victim's cell phone. That cell phone was recovered several days later, along with the victim's wallet, near the [*17]tree where the defendant was standing when first observed by the police helicopter.

Following the incident, 51 calls were placed from the victim's cell phone. Fifteen females actually spoke with a Spanish accented male who called from the victim's cell phone. The People seek to introduce the contents of only six of the phone calls on their direct case.

Additionally, about ten phone calls were placed to the 502 area code. There is no evidence that any of the calls were completed, however, the People seek to use the fact that such calls were placed as relevant to identity because 502 is also the telephone country code for Guatemala.

The six calls the People seek to introduce and the substance of their content are as follows:

At about 11:16 a.m. on April 29, 2005, Caroline Rosato received a phone call on her cell phone. A Spanish accented male voice said words to the effect of "Hello Caroline, do you know Maddy?'" When Ms. Rosato responded that Maddy was her father, the caller stated: "Is she your friend, maybe you need a little help . . . you know, a little push push." She the hung up.

At about 11:36 a.m., the Spanish accented male called back on Ms. Rosato's phone. However, Ms. Rosato's sister, Anna Solicito, answered the phone. The caller stated that " Maddy' told me to call you. You want me to come eat your pussy and fuck you?"

At 11:26 a.m., Jayne Buckley received a call from a man with a Spanish accent. The man asked her if she was a friend of Mary Nagle. The man then stated "I want your pussy." At 11:44 a.m., the same man called Ms. Buckley back and stated "I want to have sex with you."

At 12:12, Mary Nagle's sister, Donna McGrath, received a call from a male hispanic who said: "Hello, Donna, I got your number from Mary, she just gave me really good pussy. You know she was so good, she said you would give me pussy too. He further stated: "She loved how I used my fingers on her. She said you would be as good, so will you give me pussy Donna? She gave me pussy."

At 12:44 p.m., Lisa Blinn received a call from Mary Nagel's cell phone. The caller was a male with a Spanish accent. The caller asked "Lisa, are you a friend of Mary's?" "Do you want Mary finger?"

As a general rule, "all relevant evidence is admissible unless its admission violates some exclusionary rule." People v. Scarola, 71 NY2d 769, 777 (1988). See also People v. Primo, 96 NY2d 351, 355 (2001); People v. Wilder, 93 NY2d 352 (1999); People v. Gomez, 288 AD2d 395 (2nd Dep't 2001); People v. Rosado, 273 AD2d 325 (2nd Dep't 2000); People v. Jettoo, 205 AD2d 555 (2nd Dep't 1994). However, "[e]ven where technically relevant evidence is admissible, it may still be excluded by the trial court in the exercise of its discretion if its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the jury." People v. Scarola, 71 NY2d 769, 777 (1988). "Evidence of merely slight, remote or conjectural significance' will ordinarily be insufficiently probative to outweigh these countervailing risks. People v. Primo, 96 NY2d 351, 355 (2001)(quoting People v. Feldman, 299 NY 153 (1949)).

The fact that phone calls were made from the victim's cell phone, whether received or not [*18]is clearly relevant given the circumstances surrounding the calls and the phone. There would be no unfair prejudice to the defendant in admitting that evidence. The more difficult issue is whether the contents of those six phone calls, as outlined above, should be admitted.

With respect to the phone calls received by Ms. Rosato and her sister, Ms. Solicito, the fact that a Spanish accented male asked for "Maddy" each time is clearly highly relevant. Further, there is no unfair prejudice to the defendant by the admission of that testimony. The fact that the defendant stated "You want me to come eat your pussy and fuck you" to Ms. Solicito has strong probative value in that it may be indicative of the sexual acts the defendant is alleged to have performed on the victim and may explain some of the physical evidence recovered in the case. Although such a statement is prejudicial to the defendant, it is not unfairly so. Further, the prejudice does not "clearly outweigh" the probative value. However, the fact that the defendant stated "push push" to Ms. Rosato has very little probative value and would be very prejudicial to the defendant.

Accordingly, the contents of the calls to Ms. Rosato and Ms. Solicito, with the exception of the "push push" comment are admissible.

The phone calls Jayne Buckley received from a man with a Spanish accent are admissible insofar as the caller asked her if she was a friend of Mary Nagle. The statements "I want your pussy" and "I want to have sex with you" have very little probative value and are highly prejudicial. Therefore, the contents of that call are admissible only insofar as the caller asked Ms. Buckley if she was a friend of Mary Nagle.

The contents of the call receive by Lisa Blinn is admissible. The caller was a male with a Spanish accent and asked "Lisa, are you a friend of Mary's?" "Do you want Mary finger?" Such statements are highly relevant and corroborate some of the physical evidence. There is no unfair prejudice to the defendant from the admission of the contents of the call. Accordingly, the entire contents of the call is admissible.

Finally, the call received by Donna McGrath, is admissible in its entirety. The caller stated words to the effect of "Hello, Donna, I got your number from Mary, she just gave me really good pussy. You know she was so good, she said you would give me pussy too. He further stated: "She loved how I used my fingers on her. She said you would be as good, so will you give me pussy Donna. She gave me pussy." Such admissions by the defendant are highly probative as they establish elements of the alleged sex crimes and corroborate the physical evidence. Further, the call establishes that there is little doubt that the caller is the perpetrator. The prejudice due to the admission of the contents of that call is not unfair and clearly does not outweigh the substantial probative value.

This Decision shall constitute the Order of the Court.

E N T E R

Dated:New City, New York [*19]

March 22, 2006

WILLIAM A. KELLY

J.S.C.

TO: Footnotes

Footnote 1:Although not part of the Court's original Order, the Court granted defense counsel's oral application to challenge the seizure of the clothes worn by the defendant at the time of his arrest.

Footnote 2:It should be noted that this ruling is made prior to the trial based on facts made known to the Court by the People. In no way does this holding relieve the People of burden of establishing a proper foundation for one or both of the exceptions at trial.