Matter of Jonathan D.

[*1] Matter of Jonathan D. 2009 NY Slip Op 50298(U) [22 Misc 3d 1126(A)] Decided on January 20, 2009 Family Court, Bronx County Merchan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through February 27, 2009; it will not be published in the printed Official Reports.

Decided on January 20, 2009
Family Court, Bronx County

In the Matter of Jonathan D., A Person Alleged to be a Juvenile Delinquent



D-5447/07



Appearances of Counsel: Leah S. Schmelzer, Esq., Assistant Corporation Counsel (presentment agency), Mariella Martinez, Esq., Legal Aid Society, JRD (law guardian) and Jessica Brown, Esq. (court-appointed counsel for Complainant)

Juan M. Merchan, J.

Procedural Background

By petition filed on March 7, 2007, Respondent is alleged to have committed acts which, if committed by an adult, would constitute the crimes of Attempted Grand Larceny in the Fourth Degree, in violation of Penal Law §110/155.30(5), Assault in the Third Degree, in violation of Penal Law §120.00(3), Attempted Assault in the Third Degree, in violation of Penal Law

§§110/120.00(1), Menacing in the Third Degree, in violation of Penal Law §120.15, Criminal Possession of Stolen Property in the Fifth Degree, in violation of Penal Law §165.40, and other lesser crimes.

On November 25, 2008, this Court granted the Presentment Agency's motion for a Sirois hearing to determine whether the complaining witness's out-of-court statements, including her testimony at a probable cause hearing and her sworn deposition, should be admitted into evidence on the grounds that Respondent's misconduct had intentionally rendered the complaining witness unavailable. The Presentment Agency alleged in their moving papers that Respondent had intimidated the Complainant, who is his mother, by threatening to break everything in her house if she pursued her criminal complaint against him, and that this threat resulted in the Complainant's refusal to testify at the fact-finding hearing. The matter was presented to the Court on December 10, 2008 and December 18, 2008, with testimony elicited from Sergeant Michelle Marrero, Probation Officer William Coachman and Detective Migdalia Currao. The Court heard oral summations on December 18, 2008. Now, having observed the demeanor and assessed the credibility of the witnesses, having reviewed the record, and after due deliberation thereon, the Court hereby finds the following:

Findings of Fact

Sergeant Marrero, Shield No. 1778, of the 20th Precinct, testified on direct examination that she has been employed by the New York City Police Department for seven years, and most recently, for six months as a sergeant. She recounted that on March 7, 2007, at approximately [*2]10:00 a.m., she was on duty in a police vehicle when she responded to a radio run regarding a "family" disturbance at 673 East 140th Street in the Bronx. Sergeant Marrero testified that when she arrived at apartment 2C, the Complainant opened the door and urged the Sergeant to hasten to the bedroom because her son, the Respondent, was trying to escape out a window. The Sergeant recalled that upon entering the bedroom, she observed Respondent making his way through a window and promptly summoned him back inside. The Sergeant recalled that Respondent offered words to the effect that he was just "trying to go to school." The Sergeant further testified that, according to Complainant, she was preparing dinner, but Respondent, hungry and impatient, allegedly became violent and demanded money. Complainant also alleged that Respondent had "pushed and shoved and verbally abused her," while he attempted to take her purse.

Sergeant Marrero testified that Complainant had expressed a willingness to pursue a criminal complaint against her son and that she had cooperated with the process of filling out paperwork, such as the domestic incident report. Sergeant Marrero recalled that Complainant went voluntarily to the precinct and was accompanied there by an ACS social worker. Sergeant Marrero further testified that she explained to Complainant the process involved in pursuing a criminal complaint, including the court procedure. She also stated that she informed the Complainant that Respondent would be "going to Spotford [sic]."

Probation Officer Coachman testified at the Sirois hearing. He indicated that he was assigned to Respondent's case on March 27, 2007 as part of a conditional release program and that he monitored Respondent's attendance in school and compliance with curfew for approximately thirty days. P.O. Coachman affirmed that he spoke regularly with Respondent's mother regarding Respondent's cooperation with the conditional release program. P.O. Coachman also testified that Respondent was not attending school or abiding by his curfew and, as a result, the case was reinstated to the court's calendar on April 23, 2007. He recalled that the mother was cooperative and willing to assist in the process of reinstating the case to the calendar for Respondent's failure to cooperate with the conditional release program.

Detective Currao, Shield No. 82, assigned to the 43rd Precinct, testified that she has been employed by the New York Police Department for approximately seventeen years, six of those years as a detective. She recalled that she was assigned to the case on September 8, 2008 and that on September 12, 2008, she had a conversation with Respondent's mother regarding a complaint report of criminal mischief, which Complainant had filed against Respondent on August 14, 2008. She testified that Complainant said she was scared because her son had been violent in the past, but that she was "okay" with "putting out a warrant" for his arrest. Respondent was ultimately arrested on September 25, 2008. Detective Currao testified that she told the Complainant that Respondent had been arrested and that she should come to court to complete an affidavit and to obtain an order of protection. She indicated that the Complainant, referring to respondent's violent history, responded that "an order of protection is not going to do nothing for me." The detective further testified that the Complainant said that Respondent had threatened that if she pressed charges, Respondent would break everything in her house. On cross examination, Detective Currao conceded that she did not know when Respondent allegedly made those threatening remarks. Detective Currao also recalled that "all morning long" Respondent had urged Detective Currao to call his mother, stating, "she's not going to press charges."

Upon the application of the Presentment Agency, the Court took judicial notice that the [*3]mother testified, without the assistance of counsel, at a probable cause hearing on March 9, 2007. The Court also granted Respondent's application and took judicial notice that the mother appeared at the fact-finding hearing on October 31, 2008, at which time she testified with the assistance of counsel and invoked her Fifth Amendment privilege against self-incrimination on several occasions.

The Presentment Agency argues that by his own misconduct, to wit: threatening to break everything in Complainant's home if she pressed charges, Respondent has forfeited his Constitutional right to confront this witness against him, as well as the protection of the rules against the admission of hearsay and thus, that Complainant's testimony at the probable cause hearing, her sworn deposition and the domestic incident report should be admitted into evidence in lieu of her testimony at trial. Respondent, by his law guardian, contends that the Presentment Agency has not sustained its burden of establishing by clear and convincing evidence that the witness's unavailability was procured by Respondent and, therefore, the Presentment Agency should be precluded from introducing the out-of court statements into evidence as part of its case-in-chief.

Conclusions of Law

The prosecution bears the burden at a Sirois hearing to "demonstrate by clear and convincing evidence that the defendant by violence, threats or chicanery, caused a witness's unavailability." People v. Cotto, 92 NY2d 68, 76 (1998); see also People v. Geraci, 85 NY2d 359 (1995); and Holtzman v. Hellenbrand, 92 AD2d 405 (2nd Dept. 1983). This heavy burden placed upon the Presentment Agency is unequivocal and exacting and serves, in large measure, as a necessary safeguard to insure that only reliable evidence be admitted at the fact-finding. Matter of Duane F. at 276; see also Geraci, 85 NY2d 359; and Cotto at 75 (holding that prior out-of-court statements admitted "cannot be so devoid of reliability so as to offend due process.") It also serves to ensure that the severe sanction it seeks to impose, namely the foreclosure of Respondent's Sixth Amendment right to confront those witnesses against him at trial, is afforded due consideration and applied with restraint.

However, in applying this principle, courts have held that "the People need not demonstrate that the defendant's sole motivation is to procure the witness's unavailability. It is enough that a 'desire to silence the witness motivated the defendant in part.'" People v. Byrd, 51 AD3d 267 (1st Dept., 2008), quoting People v. Maher, 89 NY2d 456, 462 (1997) (emphasis added).

Thus, only in the event of "an affirmative finding by the court on the issue of defendant's misconduct" at the conclusion of an evidentiary hearing will the defendant be deemed to have forfeited any objection to the admissibility of the witness's prior out-of-court statements, such as grand jury testimony. Under these limited circumstances, such statements may be admitted as direct evidence at defendant's trial. See Holtzman v. Hellenbrand at 415; see also Matter of Duane F., 309 AD2d 265 (1st Dept. 2003).

Analysis

In its summation, the Presentment Agency misconstrued the applicable test when it asserted that Respondent needs to be only "partly responsible" for the complaining witness's unavailability. Rather, the law requires that the Presentment Agency establish that a "desire to silence the witness motivated the defendant in part." See People v. Byrd, supra (emphasis [*4]added). The distinction is meaningful, insofar as the law emphasizes the motives of the defendant (or respondent) rather than those of the witness.

The misinterpretation is also significant, as it reveals a sad reality inherent in the circumstances of this case, to wit: Respondent is seventeen years old and Complainant is his mother. The motivations of Complainant, when failing to appear in court or when invoking her Fifth Amendment right against self-incrimination at the fact-finding hearing, are undeniably complex. The Court signed two separate judicial subpoenas commanding Complainant's appearance at trial. On October 31, 2008, Complainant did appear and, with the assistance of counsel, testified at the fact-finding hearing.[FN1] However, before testifying, Complainant's counsel expressed the mother's reluctance to testify "for a variety of reasons," including that her "memory is cloudy" and "she does not wish to testify against her son," as well as her personal concerns involving the risk of "child endangerment charges." Under examination, Complainant vascillated between not recalling details of the underlying incident and invoking her Fifth Amendment privilege against self-incrimination. However, she did also did testify as to certain details of the alleged incident, including that Respondent was hungry and did not wish to wait for dinner to be prepared and that a struggle over her purse ensued and the two fell to the ground. When pressed as to whether her son ever threatened her, Complainant stated, "my son has issue [sic], problems with me. He doesn't belong in jail."

While the Presentment Agency may not be satisfied with the degree to which Complainant, under oath, provided details of the underlying incident or details of the intimidation and threat allegedly made by Respondent in an attempt to deter her from testifying or pressing charges against him, Respondent accurately pointed out on summation that Complainant did, in fact, appear and testified in court. Thus it can not be fairly said that Complainant was unavailable at all. However, even if this Court were to find that Complainant was indeed unavailable, given all of the circumstances surrounding the mother-son relationship and Complainant's personal concerns, this Court is not persuaded by clear and convincing evidence that Complainant's "unavailability" was procured by Respondent's misconduct.

According to the testimony of Detective Currao, Complainant expressed skepticism as to whether an order of protection would effectively keep her safe. While crediting the testimony of the witnesses at the Sirois hearing, this Court also notes the apparently contradictory behavior of the mother throughout the pendency of these proceedings. As the record indicates, Complainant allowed Respondent to return home during the one and a half years an open warrant existed for Respondent's arrest, between April 24, 2007 and September 26, 2008. Further, while Complainant permitted Respondent to reside with her, she concealed her knowledge of Respondent's whereabouts from law enforcement, stating that she did not know where he may be or, alternatively, that she had sent him to Puerto Rico.

The Presentment Agency seeks to analogize the instant matter to People v. Byrd, supra. The circumstances there, however, were vastly different. In Byrd, the complaining witness was the victim of a long history of severe physical and mental abuse by her domestic partner, which culminated in her being beaten nearly to death by the defendant. The facts there reveal that the [*5]defendant refused to allow the victim to seek medical treatment, which she did not obtain until the defendant left the house temporarily with the couple's young daughter. Further, the defendant repeatedly contacted the complaining witness from prison, in violation of an order of protection, and even had family members visit her bedside in the hospital on his behalf. Significantly, as noted by the First Department, the court in Byrd properly admitted expert testimony regarding Battered Person's Syndrome, to explain in part, why the complaining witness in that case might assert that the defendant had not coerced her to refuse to testify against him.

While the record here indicates that Respondent allegedly threatened Complainant sometime after his arrest, the Court makes its determination not because of either a lack of evidence linking those alleged threats to Respondent, or a failure to establish that the alleged threats were directed against Complainant.[FN2] Rather, this Court bases its decision on a failure to establish that Complainant was truly unavailable, as evidenced by the fact that she appeared, took the stand and offered some arguably probative testimony against Respondent. While it is true that Complainant invoked the Fifth Amendment onseveral occasions, it is also true that she answered numerous questions, many of which would appear to advance the prosecution's theory of the case. That the complaining witness was unable to recall certain details in and of itself does not establish the witness's unavailability or that any such unavailability was caused by Respondent's misconduct.

Moreover, assuming arguendo that Complainant were deemed unavailable, this Court is not convinced that this occurred as result of Respondent's alleged threats, rather than, for example, her propensity to enable her son in his alleged misdeeds, or to protect herself from incrimination arising from seemingly inconsistent testimony, or to avoid further involvement in her life from ACS, or even because she could not clearly remember events which occurred approximately twenty months earlier.

Accordingly, the Presentment Agency's application to admit into evidence the Complainant's testimony at the probable cause hearing, as well as her sworn deposition and

domestic incident report, is hereby denied. This constitutes the decision and order of the Court.

E N T E R:

____________________________Hon. Juan M. Merchan, J.F.C.

Dated: January 20, 2009

Bronx, New York Footnotes

Footnote 1:Upon the application of Corporation Counsel, Complainant was deemed a hostile witness while testifying on the Presentment Agency's direct case.

Footnote 2: As noted by the Court of Appeals, in considering the "'inherently surreptitious nature of witness tampering," circumstantial evidence may be used to 'establish... that a witness's unavailability was procured by the defendant.'" see, e.g., Cotto, 92 NY2d at 76, quoting Geraci, 85 NY2d at 369 ( wherein the Court of Appeals held that evidence was sufficient in defendant's murder trial to find that threats were made by defendant against the prosecution's eyewitness.) Here, this Court credits the testimony of the witnesses, and in particular, that of Detective Currao, who testified to the threats made by Respondent against his mother.