People v Whitley

[*1] People v Whitley 2006 NY Slip Op 50701(U) [11 Misc 3d 1084(A)] Decided on April 24, 2006 County Court, Suffolk County Hinrichs, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 24, 2006
County Court, Suffolk County

The People of the State of New York,

against

Brian Whitley, Defendant



1936-2002



Hon. Thomas J. Spota

Suffolk County District Attorney

Catherine Loeffler, Esq.

Assistant District Attorney

Criminal Courts Building

200 Center Drive

Riverhead, New York 11901-3303

Michael Gajdos, Esq.

Attorney for Defendant

31 West Main Street, Suite 203

Patchogue, New York 11722

C. Randall Hinrichs, J.

A hearing was conducted on March 10, 2006, as directed by the Court in a decision dated March 7, 2006, to determine whether the People can establish due diligence in bringing to court two witnesses, whose testimony the People seek to introduce by transcript, within the meaning of Criminal Procedure Law (CPL) § 670.10. The People initially sought to be permitted to introduce a transcript of the testimony of a third witness, Andrew Pugsley, however, the People have located Mr. Pugsley since the filing of the motion and orally withdrew their application as to him. The two witnesses whom the People submit are now unavailable for defendant's upcoming retrial are Omar Gunaydin and Murat Ilgin. The People and defendant have also submitted memoranda of law to the Court in support of their respective positions and both sides presented oral argument to the Court, as well, on April 13, 2006.

The People's first witness at the hearing, M. Terkin Esendal, is a professional Turkish interpreter. Mr. Esendal testified that he came to the Suffolk County District Attorney's Office on February 23, 2006, as arranged the day before with a Detective Investigator, for the purpose of contacting two persons in the country of Turkey by phone.

Mr. Esendal testified that he first dialed digits 011, the code for an international call, then digits 90, the code to reach Turkey and then digits 454-216-5451. A female answered the phone and Mr. Esendal asked for Omar Gunaydin. A male voice came on the line and identified himself as Omar Gunaydin. Mr. Esendal told Mr. Gunaydin he was calling about a Robbery that happened in the United States. Mr. Esendal asked if Mr. Gunaydin was planning on coming back [*2]to the United States. Mr. Gunaydin stated: "no, I could not come even if I wanted to." When asked why he was saying that, Mr. Gunaydin replied: "they will not issue a visa for me." (Hearing transcript, direct testimony of Mr. Esendal, page 11, lines 12 - 18.)

Mr. Esendal testified that he called the same telephone number (011-90-454-216-5451) again on the morning of March 10, 2006 and a female answered the phone. The female stated that she was Omar Gunaydin's wife, Gulcin, and that Omar was at work. Mr. Esendal asked Gulcin if Omar was coming back to the United States. Gulcin replied that he was not because of visa problems. Mr. Esendal asked if Omar would come if there were no visa problems. Gulcin stated: "no, the matter of America is over for him; and he is not coming" "going to America any more." (sic) (Hearing transcript, direct testimony of Mr. Esendal, page 12, lines 17 - 25.)

Mr. Esendal testified that he also called, on February 23, 2006, number 011-90-414-611-7169, a military unit, and asked for Murat Ilgin. The person who answered explained that the unit had two Murats and then spoke with someone at the other end of the line, putting Mr. Esendal on hold. The person came back on the line and advised Mr. Esendal that Murat Ilgin had only a couple of days left remaining on his military service and that Mr. Ilgin was not at the military location called. The person said Mr. Ilgin could be at Division Headquarters or he may already have been discharged. Mr. Esendal never spoke directly with Mr. Ilgin.

The People's next witness was Detective Investigator Robert Flood from the Suffolk County District Attorney's Office. Detective Flood was asked on December 20, 2005 by Assistant District Attorney Catherine Loeffler to locate two witnesses, Omar Gunaydin and Murat Ilgin.

Detective Flood testified that he filed requests for information (file 15 requests) as to both witnesses in search of criminal, immigration and warrant information. The detective found no criminal or warrant history for either witness.

Immigration records revealed that both witnesses are citizens of Turkey. Detective Flood searched immigration records for Mr. Gunaydin using a date of birth (dob) of October 14, 1960. This revealed records indicating that Mr. Gunaydin arrived in the United States on September 22, 1999, that he was given permission to stay in the United States until March 21, 2000 and that he departed from the United States on December 24, 2004. Immigration records run for Mr. Ilgin using a dob of December 14, 1979, indicate that he arrived in the United States on July 24, 1998 and that he was allowed to stay in the United States until January 23, 1999. Immigration records did not show a departure date from the United States for Mr. Ilgin.

Detective Flood ran record checks for both witnesses for driver's license information, warrant and wants checks and found no information. The detective ran both names through computer assisted address searches and found no current addresses.

Detective Flood contacted the Town of Southampton Police Department, the town where the alleged robbery was committed. The Southampton Police Department had no recent contact with either witness.

Detective Flood went on December 21, 2005 to the Ocean gas station where the subject robbery allegedly occurred at 301 Flanders Rd., Riverside. The detective spoke to a man named Shateek who called the owner of the gas station. The owner came to the gas station and Detective Flood told him he was trying to locate Omar Gunaydin and Murat Ilgin. The owner informed the detective that Gunaydin has a cousin or brother who works in a Coastal gas station in Port Jefferson, but that Gunaydin returned to Turkey over a year ago. The owner gave the Port [*3]Jefferson gas station address as Route 112, Port Jefferson Station. The owner also told the detective that Ilgin was in the army back in Turkey and wouldn't be returning.

Detective Flood next went to the Coastal gas station on Route 112, Port Jefferson Station, where he spoke to an attendant, Erman Mavruk, who informed him that Omar Gunaydin was in Turkey. The attendant said Omar's brother, Omdair, was a manager at this gas station and raised Omdair by phone for the detective. Omdair gave Detective Flood a phone number in Turkey for his brother Omar, 454-216-5451. Omdair stated his brother drives a bus in Turkey. Omdair did not know Murat Ilgin.

The next day, December 22, 2005, Detective Flood went to the Coastal gas station across the street from the Ocean station in Riverside to speak to an attendant the detective knows by the name of Ilhan. Ilhan was aware of the alleged robbery. Ilhan told the detective that Gunaydin returned to Turkey over a year ago and that Ilgin was in the army in Turkey.

On January 11, 2006 Detective Flood called the federal Immigration and Customs Enforcement (ICE) Unit and spoke to an Agent Knopf. Detective Flood explained that his records show an arrival date for Mr. Ilgin, but no departure date. Agent Knopf told the detective this wasn't unusual and it usually means the subject returned to their native country from somewhere other than the United States. ICE had no records showing Gunaydin was forced to leave the country. Nor did ICE have any records of investigations regarding Ilgin.

Detective Flood contacted Detective Sergeant Loggia of the Town of Riverhead Police Department on January 12, 2006. Detective Loggia had a hit on an Ilgin with a different first name and different dob than Murat Ilgin.

On January 30, 2006, Detective Flood went to the last known address of Gunaydin and spoke to a woman. The woman said she knew Gunaydin and he went back to Turkey.

Detective Flood spoke with Alfonso Harris at the last known address of Ilgin. Mr. Harris told the detective he knew Ilgin as a tenant in 2001-2002 and was aware that Ilgin worked at the Coastal gas station and also at the Shell gas station on the traffic circle in Riverhead. Mr. Harris reported that Ilgin's father died and he moved in with cousins.

On January 30, 2006, Detective Flood also went back to the Coastal gas station in Port Jefferson and spoke to Eman Kanturk. Mr. Kanturk told the detective that Gunaydin went back to Turkey a year ago Christmas.

Detective Flood then went to the Shell gas station on the traffic circle in Riverhead. There he spoke to Nasim Ilgin who said he was a second cousin of Murat Ilgin. Detective Flood testified that Nasim was originally evasive, but that he gave the detective a phone number in Turkey, 011-90-414-611-7169, which he said was a military unit to which Murat was assigned.

Detective Flood then went to another gas station on Rt. 58 in Riverhead and spoke to an attendant who said he worked with Ilgin around the time of the alleged robbery. The attendant told Detective Flood that Ilgin went back to Turkey approximately two years ago to complete his military service.

On February 22, 2006 Detective Flood contacted an interpreter, Mr. Esendal and arranged to meet the next day to make phone calls to Turkey.

On February 23, 2006 Detective Flood was present in the room while Mr. Esendal made the two phone calls described in Mr. Esendal's testimony outlined above. Mr. Esendal told Detective Flood, at the conclusion of the two phone calls that Mr. Gunaydin had no plans to [*4]return to the United States and that he had visa problems. Mr. Esendal also told Detective Flood the military unit of Murat Ilgin provided no additional information as to the whereabouts of Ilgin.

On cross examination, Detective Flood acknowledged that the immigration paperwork provided by the Immigration and Naturalization Service (INS) (in evidence at the hearing as Defendant's A [Ilgin] and B [Gunaydin] respectively) states that remaining in the country beyond the date allowed may be a violation of INS laws. The detective also confirmed that the alleged robbery was after the date both men were allowed to remain in this country.

Detective Flood also testified on cross examination that his notes regarding the phone calls on February 23, 2006 (in evidence at the hearing as Defendant's C) do not make mention of

Gunaydin's reference to visa problems.

The People also called Suffolk County Assistant District Attorney Marcia Kucera. Ms. Kucera is assigned to the Appeals Bureau of the District Attorney's Office. She also handles for the District Attorney's Office all matters involving fugitives and testified that, as a result, she has experience in international process.

Ms. Kucera testified that she called the Office of International Affairs (OIA) on March 10, 2006 and spoke to Supervising Attorney Dave Warner. Ms. Kucera testified that the Suffolk County District Attorney is without authority to subpoena persons outside of the country and that OIA represents the United States in connection with the return of anyone charged here who is out of the country.

On cross examination, Ms. Kucera acknowledged that, although her office cannot subpoena witnesses who are outside the country, there is a material witness procedure which would require the assistance of a court or agency where the witness is located.

Ms. Kucera also testified that if a witness were willing to voluntarily return to this country to testify, the OIA might offer assistance in having the witness appear. The OIA would only assist, however, if assurances were made that the witness would, in fact, testify and return to their native country immediately upon conclusion of his testimony.

Finally, Ms. Kucera testified that the witness might, if willing, with the permission of the Turkish government, be permitted to be deposed in the United States Embassy in Turkey. Ms. Kucera pointed out that any such deposition would be subject to the rules of admissibility.

Discussion

Defendant submits that the hearing testimony reveals that the People have failed to exercise due diligence in finding and bringing to court the two subject witnesses. Defendant further argues that the cross examination of the two witnesses at the first trial was so inadequate as to deprive defendant of his rights under the Confrontation Clause.

CPL § 670.10 provides the statutory framework for the use of testimony from a prior proceeding at a criminal trial. The requirement, in CPL § 670.10, of due diligence on the part of the People prior to the receipt of the transcript of an unavailable witness was explored by the Court of Appeals in People v Diaz, 97 NY2d 109 (2001.)

Defendant correctly points out that the Court in Diaz found that the People had not established due diligence in bringing an out of country witness to court, however, there are significant factual differences between Diaz and the instant case.

Here, Detective Flood testified to very extensive efforts in attempting to locate the [*5]witnesses. Indeed, the People's efforts were fruitful in locating one of the three witnesses, Mr. Pugsley, whom the People intend to call at the upcoming trial. Detective Flood's efforts included interviewing neighbors, relatives and co-workers; following leads obtained from those interviews; searching criminal and motor vehicle records; obtaining and tracking immigration records and consulting immigration authorities. Detective Flood also enlisted the services of a Turkish interpreter to make phone calls to Turkey using phone numbers uncovered during his investigation.

The Court finds that the People here have established due diligence in attempting to locate the two witnesses. The Court further finds that despite that diligence, Mr. Ilgin cannot be found and Mr. Gunaydin is outside the state and cannot with due diligence be brought before the court within the meaning of CPL § 670.10. First, the Court can conceive of little else the People could have done to find Mr. Ilgin. Detective Flood, through considerable investigative effort, tracked Mr. Ilgin to a military unit in Turkey. The detective, through an interpreter, made contact with the military unit and discovered that Mr. Ilgin had, or was about to, complete his military obligations. No further information could be learned about Mr. Ilgin's whereabouts.

Next, the phone calls between Mr. Esendal, the Turkish interpreter, and Mr. Gunaydin and his wife reveal that Mr. Gunaydin is unavailable to testify at the upcoming trial. Mr. Gunaydin himself stated: "no, I could not come even if I wanted to" and "they will not issue a visa for me." That he did not want to return was confirmed by his wife in the subsequent phone call when she told Mr. Esendal: "no, the matter of America is over for him; and he is not coming" "going to America any more." (sic). These assertions of an unwillingness to voluntarily return and an inability to obtain a visa, coupled with Assistant District Attorney Kucera's testimony that there is no vehicle by which a witness can be compelled to testify under these circumstances, compels the Court to conclude that Mr. Gunaydin is unavailable to testify, despite diligent efforts by the People to produce him.

The efforts of Detective Flood and Mr. Esendal stand in sharp contrast to the efforts outlined in the Diaz case. In Diaz, following three mistrials, including two from hung juries, the People's only witness to identify the defendant as the assailant returned to his native Mexico. The efforts put forth by the People to return this witness consisted of a detective and an assistant district attorney speaking by phone to the purported unavailable witness in English without the aid of a Spanish interpreter. The prosecutor admitted the witness "certainly wasn't fluent in English," but "appeared to understand me at some point."

The Court, in Diaz, made clear that their finding that diligence was lacking took into account that the trials which were conducted with the live testimony of the subject witness resulted in three mistrials including two from hung juries. Here, the trial with the live testimony of the two subject witnesses resulted in a conviction. Defendant's conviction was overturned based upon the improper substitution of a deliberating juror, completely unrelated to the testimony of the witnesses. The testimony of the two witnesses here relate to the corpus of the robbery itself, neither witness identified the defendant at trial. Plainly, contrary to the contention of the defendant in Diaz, the People in the instant case would prefer to have the two witnesses testify live, as they did at the trial which resulted in conviction.

The instant facts are more similar to those found in People v Arroyo, 54 NY2d 567 (1982), cited with approval by the Diaz Court, which upheld the use of a transcript at trial: [*6]

"In a number of instances this Court has sustained the use of previous testimony pursuant to CPL 670.10. We did so, for example, in Arroyo (54 NY2d, at 573, supra), by upholding the introduction of a witness's prior testimony after she had disappeared inexplicably. In Arroyo, however, the People exercised due diligence in trying to locate her. After she had failed to appear, the prosecutor called her apartment twice; detectives visited the apartment several times, questioned neighbors, and searched for her "at the neighboring public hospital, at the Missing Persons Bureau, at the Bureau of Criminal Investigation and at the local [welfare] office" (id., at 573). These lines of inquiry brought investigators "to but one dead end after another" (id.). Accordingly, this Court concluded that the People exercised due diligence."

People v Diaz, 97 NY2d at 114.

Here, as in Arroyo, the People engaged in an extensive investigatory effort in attempting to locate each of the two unavailable witnesses. See also, People v Combo, 272 AD2d 992, 708 NYS2d 781 (4th Dept., 2000.)

The Court finds defendant's right to confrontation will not be violated by the introduction of testimony of the two witnesses by transcript, since both of the witnesses were subjected to cross examination at the prior trial. See, for example, People v Linton, 21 AD3d 909, 800 NYS2d 627 (2nd Dept., 2005.) In Linton, the court, citing Crawford v Washington, 541 US 36 (2004), found no violation of the Confrontation Clause in admitting prior testimony of an unavailable witness, since the witness had been subjected to cross examination at a prior trial. However, defendant claims that the cross examination of the two subject witnesses at the first trial was so inadequate as to deprive defendant of his rights under the Confrontation Clause. The Court finds this argument unpersuasive. The critical aspect of cross examination in this regard is a full and fair opportunity to examine the witness, not whether another attorney would have conducted cross examination differently. "[W]hen parties have sought to admit former testimony under CPL § 670.10, we have held that it is the full and fair opportunity for cross examination rather than any measure of the fullness of cross examination that serves as the baseline indicator for reliability." People v Robinson, 89 NY2d 648, 655(1997), citing People v Arroyo, supra, 54 NY2d 567 (1982.) Clearly, at defendant's first trial defense counsel was given a full and fair opportunity to cross examine both of the two subject witnesses. The trial judge did not limit or impede cross examination. See also, People v Carracedo, 228 AD2d 199, 644 NYS2d 11 (1st Dept., 1996.)

Moreover, as noted above, the two subject witnesses testified at trial as to the corpus of the robbery, neither witness specifically identified the defendant as the perpetrator. There was, therefore, good and sound strategic reason for trial counsel to conduct as he did the cross examination of these two witnesses.

Accordingly, the People's application, pursuant to CPL § 670.10, to be permitted to introduce by transcript the testimony of Omar Gunaydin and Murat Ilgin at the retrial of defendant is granted. This memorandum shall constitute the decision and order of the Court.

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J.C.C.