People v Monserrate

[*1] People v Monserrate 2009 NY Slip Op 51665(U) [24 Misc 3d 1229(A)] Decided on July 28, 2009 Supreme Court, Queens County Erlbaum, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 28, 2009
Supreme Court, Queens County

The People of the State of New York

against

Hiram Monserrate, Defendant.



576/2009



The defendant is represented by Joseph Tacopino, Esq. and Chad Siegel, Esq.

The People are represented by Assistant District Attorneys Scott Kessler and Johnnette Traill.

William M. Erlbaum, J.

Defendant, Hiram Monserrate, has submitted an omnibus motion dated May 22, 2009, and a reply affirmation dated June 26, 2009, seeking: inspection and release of the Grand Jury minutes and dismissal of the indictment; suppression of statement evidence; suppression of physical evidence; exclusion of a surveillance video; Brady material; a Sandoval hearing, including discovery pursuant to CPL 240.43; and a reservation of the right to make further motions. By "Affirmation in Opposition" dated June 12, 2009, the People consent to some of the relief sought and oppose other relief. The Court decides the motion as follows.

The branches of the motion to inspect the Grand Jury minutes and to dismiss the indictment are granted only to the extent that the Court has inspected the minutes of the Grand Jury. Upon inspection, the motion to dismiss is denied since the evidence adduced before the Grand Jury was legally sufficient to sustain the indictment. Moreover, the People properly instructed the Grand Jury on the relevant law (see, People v. Calbud, Inc., 49 NY2d 389). Release of the Grand Jury minutes is denied since defense counsel has not demonstrated any compelling need for such action, and the Court was able to determine the motion through its own efforts (see, CPL 210.30[3]).

In his omnibus motion, the defendant has made numerous, specific arguments in support of his applications to dismiss the indictment. The Court will address them as follows.

The defendant in this case has been indicted for various counts and degrees of assaultive behavior committed against the alleged victim, with whom he was involved in an intimate relationship. It is the position of the defense that the injuries suffered by the alleged victim were the result of an accident, that the defendant had no intent to cause her any injury. The defendant submits that the People introduced before the Grand Jury impermissible hearsay evidence which was used to establish a necessary element to support the assault charges, namely intent. Furthermore, the defense contends that this use of alleged impermissible hearsay rendered the instant indictment defective, warranting its dismissal.

The Court has closely examined the Grand Jury minutes underlying the instant [*2]indictment and finds that they reflect that there were indeed inculpatory out-of-court statements made by the alleged victim in this case to medical personnel, and said statements were introduced into evidence. Although out-of-court statements offered for their truth are generally not permitted to be presented to the Grand Jury (see, CPL 190.30; see also, People v. Thomas, 282 AD2d 827 [3rd Dept 2001], leave denied, 96 NY2d 925 [2001]), excited utterances are an exception to this rule. The New York State Court of Appeals has held that an "out-of-court statement is properly admissible under the excited utterance exception when made under the stress of excitement caused by an external event, and not the product of studied reflection and possible fabrication" (see, People v. Johnson, 1 NY3d 302, 306 [2003]). The Court continued that "[u]nderlying this exception is the assumption that a person under the influence of the excitement precipitated by an external startling event will lack the reflective capacity essential for fabrication and, accordingly, any utterance he makes will be spontaneous and trustworthy" (see, People v. Johnson, 1 NY3d 302, 306 [2003], citing to People v. Edwards, 47 NY2d 493, 497 [1979]). Furthermore, case law demonstrates that though there are many factors which may be considered by a court when determining the mental state of the declarant, such as the nature of the startling event, the amount of time between the event and the statement, the activities of the declarant between the event and the statement (see, People v. Brown, 70 NY2d 513, 519 [1987]), whether questioning precipitated the statement, and whether the declarant suffered injury, "each case must depend on its own circumstances" (see, People v. Johnson, 1 NY3d 302, 306 [2003]).

In the case at bar, the out-of- court statements made to medical personnel, which the People introduced into evidence to support their position that the defendant had the requisite intent to cause the alleged victim injury, are clearly excited utterances, and therefore admissible as evidence before the Grand Jury. The testimony before the Grand Jury indicates that the alleged victim was injured, whether it was accidental or not, at the hand of the defendant, with glass, on her face. This was undeniably a traumatic event. The Grand Jury minutes also indicate that after the incident, and before the alleged victim made her statements to medical personnel, she was frantic about avoiding a scar to her face, and was plainly panicked. Furthermore, the alleged victim was speaking to medical personnel a short time later, approximately 40 minutes after she suffered her injuries. See, People v. Brown, 70 NY2d 513, 520 [1987], holding that 30 minutes between incident and statement was not as a matter of law too long,[FN1] and that there is no time limit within which the statement must be made in that, "the imposition of an arbitrary time limit would run counter to the assumptions underlying the admissibility of excited utterances...". Although the medical personnel asked the alleged victim what happened, there was no indication [*3]from the Grand jury minutes that she was questioned in such a manner as would illicit studied reflection. Additionally, at that time she was suffering from severe lacerations to her face, was holding a towel to her face, and was bleeding on her clothing as well as on the towel. She was described by medical personnel as visibly upset, sobbing, hysterical, angry, very worked up, a little frantic, and crying.[FN2] Therefore, the Court finds that the alleged victim made out-of court statements to medical personnel while clearly still suffering from trauma, that those statements [*4]were excited utterances [FN3] and that they were permissibly presented to the Grand Jury.[FN4]

The defense also argues that the integrity of the Grand Jury proceedings was impaired, and the indictment should be dismissed, due to the People presenting to the Grand Jury, for its viewing, video surveillance of the defendant's apartment building on the date and times at issue in this case. The defense alleges that the video misleads the Grand Jurors by portraying the images displayed as occurring in a continuous chain of events, instead of over a lengthy period of time. Furthermore, the defense claims that the video was not properly authenticated before it was displayed to the Grand Jurors and therefore it was not admissible into evidence.

As to the issue of authentication, admissibility of a videotape into evidence requires proof that it is accurate or authentic, and that it has not been tampered with (see, People v. Ely, 68 NY2d 520 [1986]; People v. Orlando, 61 AD3d 1001 [2nd Dept 2009]. The New York State Court of Appeals held, in People v. Patterson, 93 NY2d 80, 84 [1999], that, additionally, [*5]testimony, be it expert or otherwise, may be used to establish that a video "truly and accurately represents what was before the camera" (citing to People v. Byrnes, 33 NY2d 343, 349 [1974]).In the case at bar, testimony before the Grand Jury indicates that the surveillance cameras in the defendant's apartment building recorded images onto a computer. The police in this instance reviewed the images from the camera, on the computer, and then downloaded and recorded onto a DVD the portions of the recorded data where the alleged victim or the defendant appeared, a compilation which resulted in the video images played for the Grand Jury. Witnesses testified before the Grand Jury as to the procedures employed, the accuracy of the images downloaded from the computer to the DVD, and that the video displayed to the Grand Jurors accurately reflected the images seen on the computer screen by the police when recording them on the day of the incident. Moreover, that the video reflected what the camera took in, the times of day that are reflected in the images shown, and the identity of the individuals depicted on the video. Accordingly, the Court finds that the video in question was properly authenticated and presented as evidence to the Grand Jury.[FN5]

The Court is not in accord with the allegations by the defense that the Grand Jurors were misled by the video, in that it was condensed, and lasted only minutes, instead of hours, failing to reflect actual time. Upon inspection of the Grand Jury minutes, it is apparent to the Court that the Grand Jurors were fully informed of the timing aspects of the images displayed on the video, and that there was no reasonable possibility that they were under the impression that the video displayed a continuous chain of events lasting only 6 minutes and 37 seconds, as alleged by the defense. Therefore, the defendant's application to dismiss the indictment based upon the claim that the Grand Jury proceedings were impaired due to the admission into evidence of the video in question is denied.

The defendant also submits that the indictment should be dismissed because the integrity of the Grand Jury proceedings was impaired in that one of the sitting Grand Jurors, a police officer, recognized one of the police officers who testified before the Grand Jury, as someone who had once worked in the same police precinct.

"The statutory provisions governing a grand jury do not provided for a challenge to a grand juror based on his or her relationship to a witness. . . and remote familial relationships or speculative assertions of possible bias are insufficient to require dismissal of an indictment" (see, People v. Peter, 22 Misc 3d 713, 716 [2008]). See also, People v. Revette, 48 AD3d 886 [3rd Dept 2008]. In the case at bar, a review of the Grand Jury minutes discloses that once the People learned that a sitting Grand Juror may have previously known or seen one of the police witnesses, they conducted an appropriate voir dire of the Grand Juror. The Court is satisfied that any contact the two officers may have had with one another in a time past, did not reflect a close relationship. Furthermore, the Grand Juror did not recognize any of the other testifying police officers, did not discuss this fact with any other Grand Juror, and indicated that she was [*6]able to be fair and impartial while evaluating the evidence in this case.[FN6]

The Court finds that there is no reasonable possibility of any bias or prejudice towards the defendant by the inclusion of this individual as a member of the Grand Jury which voted this indictment (see, People v. Reilly, 71 Misc 2d 227 [1972]). Accordingly, the defendant's motion to dismiss based upon this allegation is denied.

The Court notes that the "Grand Jury proceeding is not a mini trial, but a proceeding convened primarily to investigate crimes and determine whether sufficient evidence exists to accuse a citizen of a crime and subject him or her to criminal prosecution" (see, People v. Sargeant, 193 AD2d 417 [1993]). The Grand Jury may indict an individual providing there is "reasonable cause to believe" (see, CPL 190.65[1][b]) that such person committed the crime. CPL 210.20[c] provides that an indictment may be dismissed when the Grand Jury proceeding is defective. CPL 210.35[5] provides that a Grand Jury proceeding is defective when "the integrity thereof is impaired and prejudice to the defendant may result". Dismissal of an indictment is an exceptional remedy, and the statutory test that must be met before dismissal may be granted is "very precise and very high: impairment of integrity" (see, People v. Darby, 75 NY2d 449, 455 [1990]).

The Court finds, upon its careful review of the Grand Jury minutes, that the concerns of the defense, both collectively and individually, are not borne out. Additionally, the testimony of the witnesses was both clear and probative of the existence of "reasonable cause to believe" (see, CPL 190.65[1][b]), and the Court finds that the Grand Jury was provided with sufficient competent, admissible evidence supporting the indictment.[FN7] The Court finds that the integrity of this Grand Jury proceeding was not impaired, and no prejudice to the defendant brought about the indictment.

The defendant also moves to dismiss count 1 of the indictment, charging Assault in the Second Degree [PL 120.05(1)], and count 3 of the indictment charging Assault in the Second Degree [PL 120.05(4)], based upon the allegation that there was insufficient evidence presented to the Grand Jury to establish that the alleged victim suffered serious physical injury, a required element of these crimes. The defense also moves to dismiss count six of the indictment, charging Assault in the Third Degree [PL 120.00(2)], based upon the allegation that there was insufficient evidence presented to the Grand Jury to establish that the alleged victim suffered [*7]physical injury, a required element of this crime.

Serious physical injury is defined as "physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ" (see, PL 10.00[10]).

Physical injury is defined as "impairment of physical condition or substantial pain" (see, PL 10.00[9]).

Despite the defendant's arguments to the contrary, the Court finds that the evidence presented to the Grand Jury, viewed in the light most favorable to the People (see, People v. Manfro, 150 Misc 2d 1080 [1991]) was sufficient to support the Grand Jury's finding that the alleged victim suffered serious physical injuries to her face. Testimony, both medical and lay, was presented that the alleged victim's injuries were quite severe, and that she suffers from permanent scars on her face, incurred on the date in question. See, People v. Bailey, 275 AD2d 663 [1st Dept 2000], leave denied, 95 NY2d 960 [2000]; People v. Gagliardo, 283 AD2d 964 [4th Dept 2001], leave denied, 96 NY2d 901 [2001]; People v. Alson, 45 AD3d 398 [1st Dept 2007], leave denied, 10 NY3d 807 [2008]; People v. Felice, 45 AD3d 1442 [4th Dept 2007], leave denied, 10 NY3d 764 [2008]; People v. Briggs, 285 AD2d 514 [2nd Dept 2001], leaved denied, 98 NY2d 636 [2002]; People v. Martinez, 257 AD2d 667 [2nd Dept 1999], leave denied, 93 NY2d 974 [1999]; People v. Kenney, 291 AD2d 331 [1st Dept 2002], leave denied, 98 NY2d 638 [2002].

Furthermore, there was also sufficient evidence presented to the Grand Jury, again, when viewed in the light most favorable to the People, for it to conclude that the alleged victim suffered from physical injury to her arm and wrist. See, People v. Tompkins, 8 AD3d 901 [3rd Dept 2004]; People v Williamson, 21 AD3d 575 [3rd Dept 2005], leave denied, 6 NY3d 761 [2005]; People v. Haith, 44 AD3d 369 [1st Dept 2007], leave denied, 9 NY3d 1034 [2008]. Accordingly, the defendant's applications to dismiss counts 1, 3, and 6 of the indictment are denied.

The branch of the motion seeking to controvert the two search warrants that issued in this case, and, after a Franks hearing (see, Franks v. Delaware, 438 US 154 [1978]), suppressing all evidence derived therefrom, based upon the claims that the search warrant affidavits failed to establish probable cause to search the defendant's residence, and contained intentional misstatements and omissions, is denied.

The first search warrant, to search the defendant's residence, was supported by an affidavit signed by Police Officer Fitzgerald, and dated December 19th, 2008. The defendant submits that this warrant was issued without probable cause because Officer Fitzgerald omitted from his affidavit that the alleged victim in this case described the incident which caused her injuries as an accident. Initially, the Court notes that the affidavit in support of the search warrant, on its face, did set forth probable cause for its issuance. "To establish probable cause, a search warrant application must provide sufficient information to support a reasonable belief that evidence of a crime may be found in a certain place" (see, People v. German, 251 AD2d 900 [3rd Dept 1998], leave denied, 92 NY2d 897 [1998]). The fact that Officer Fitzgerald did not include in his affidavit a statement that the alleged victim in this case opined that the incident in question resulted from an accident is of no consequence. That characterization, accident, is a conclusion, an inference drawn by a witness. It is not a factual claim, not a statement of what she saw, or what she heard. The factual claims in the officer's affidavit include statements that the alleged [*8]victim was injured, that the officer observed her injuries, and that he was informed [FN8] that she sustained those injuries during a dispute, at the defendant's home, that the defendant picked up a glass, broke the glass, and hit her with the broken glass. The Court finds that the alleged victim's professed opinion that this was done accidently does not negate the finding by the judge who signed the search warrant of probable cause for its issuance.

The defendant also claims that Officer Fitzgerald intentionally and recklessly put in his affidavit in support of the search warrant a misleading description of the events depicted in the video surveillance. The defense submits that the officer described the defendant forcibly pulling the alleged victim down the stairs, which it argues portrays the defendant as committing a violent assault against her. The People concede that the video does not depict that particular action on the part of the defendant. However, the video does depict other actions on the part of the defendant, not disputed by the defense, where, in the light most favorable to the People, it appears that he may have been dragging the alleged victim away from a neighbor's door, from a railing, and out of the building.

The Court finds that even if this mistake by Officer Fitzgerald had not been in his affidavit in support of the search warrant, probable cause to issue the warrant nonetheless existed. The fact that the error was in the affidavit, did not negate probable cause and is not material, in light of the other facts recited in the affidavit (see, Franks, supra). It appears to the Court that the error was not made intentionally or with reckless disregard for the truth (see, Franks, supra). The Court finds, as reasonable, the People's position that the error was inadvertent, especially in light of the other actions displayed in the surveillance video. In Franks, the United States Supreme Court held that before a defendant is entitled to a hearing to controvert a search warrant, he must demonstrate that the officer's false statements were intentional or knowing, or made with a reckless disregard for the truth, and that they were material to the magistrate's finding of probable cause to issue the warrant. Since that is not the case here, the defendant's motion to controvert the first search warrant is denied.

The defendant also moves to controvert the second search warrant. He alleges that since the affidavit for the second warrant relied upon evidence that was recovered during the execution of the first search warrant, since "that first search was the product of a faulty affidavit . . . any evidence derived from the second affidavit- which relied upon the unlawful results of the first search- must be suppressed as fruits of the poisonous tree' [(see, Wong Sun v US, 371 US 471 [1963])]" (see, defendant's omnibus motion, page 32, first paragraph). However, since the Court has already determined the propriety of the first search warrant, that argument must fail. Furthermore, as to the defendant's other argument in support of this application, that the second search warrant must be controverted because Detective Farkash made deliberate misrepresentations in his affidavit for that warrant, to wit, that the alleged victim specifically stated to Police Officer Fitzgerald and to hospital personnel, that the defendant acted deliberately [*9]and intentionally, the Court agrees with the People's position, as stated in their response to the defendant's omnibus motion, at pages 46- 48,[FN9] that the detective was not lying in his affidavit, that he was providing his subjective sense of the alleged victim's words, paraphrasing her statement, to the effect that during a dispute, the defendant broke a glass and cut her with it. Accordingly, the defense contention to the contrary, is unpersuasive.[FN10] Therefore, for these reasons, the defendant's application for a Franks hearing and to controvert the two search warrants is denied.

The branch of the motion seeking to suppress statements allegedly made by the defendant has become academic, in that the People have withdrawn their previously served CPL 710.30[1][a] notice.

The branch of the motion seeking exclusion at trial of the surveillance video of the defendant's apartment building is denied without prejudice for renewal before the trial court.

With respect to the branch of the motion in which the defendant requests material, pursuant to Brady v. Maryland, 373 US 83 [1963]), the People are reminded of their continuing obligation to make such material available to the defense if and when such material comes into their possession, knowledge, or control. Furthermore, the Court now discloses to the defense, based upon its own review of the Grand Jury minutes, that in the course of the testimony before the Grand Jury, the following Brady material was elicited:

- Police Officer Reefer testified that the alleged victim contended to him that her injuries were accidently inflicted;

- Dr. Homajoun Sasson testified that he was unable to determine, based upon the injuries to the alleged victim's face, whether the injuries occurred as a result of a glass being smashed against her face, a broken glass being pushed against her face, or if she fell upon the glass, and he indicated that the pressure necessary to commit these actions can produce the same injury; and

- the alleged victim testified to her conclusions that the injuries she suffered were caused accidently.

The branch of the motion seeking a Sandoval hearing is reserved for the trial court.

The branch of the motion seeking discovery pursuant to CPL 240.43 is reserved for the trial court.

The branch of the motion reserving the right to make further motions is granted to the extent permitted by CPL 255.20.

All other defense applications not addressed herein are denied as lacking merit. [*10]

This constitutes the decision and order of the Court.

The Clerk of the Court is directed to distribute copies of this decision and order to legal counsel for the People and for the defendant.

.............................

William M. Erlbaum, J.S.C.

Footnotes

Footnote 1: The Court notes that the victim in Brown suffered from a fatal gun shot wound. However, the type of injury as compared to those suffered by the alleged victim in the instant case does not preclude a finding that the statements herein are excited utterances, as the Court finds that at the time the statements were made, she was "under the continuing influence of the stress and excitement generated by the initial event" (see, People v. Brown, 70 NY2d 513, 522 [1987]), namely severe injuries to her face.

Footnote 2: The Court notes defendant's argument that because the alleged victim's medical records indicate that she was stable, her statements to medical personnel could not have been excited utterances. However, the Court finds that this argument is not supported by the facts and evidence. The medical records referred to by the defense were those of Dr. Sasson, the plastic surgeon who treated the alleged victim. The Grand Jury minutes reflect that Dr. Sasson treated her, and therefore must have made his observations of her, approximately three hours after she made her statements to the medical personnel who testified that she stated that the incident was not accidental. As the Grand Jury minutes indicate, her emotional level when she made those excited utterances was markedly different than when she was later treated by the plastic surgeon.

Footnote 3: The Court notes that the People submitted, contrary to an argument set forth by the defense, that even if the statements in question were not excited utterances, they would still be admissible before the Grand Jury as statements made to medical personnel for the purpose of diagnosis and treatment (see, People v. Yun, 35 AD3d 494 [2nd Dept 2006], leave denied, 8 NY3d 920 [2007]). Though it is not necessary for the Court to make this determination, as the Court has already determined that the statements were excited utterances, the Court does find that the statements in question would indeed be admitted into evidence pursuant to this hearsay exception as well. The fact that the alleged victim indicated to medical personnel that her injuries were not due to an accident, was relevant to her diagnosis and treatment. Medical personnel testified before the Grand Jury that it was important for their treatment of her to know how the injuries occurred and what the mechanisms of the action causing the injuries were. Medical personnel indicated that this is because injuries suffered in different ways require different types of treatment.

Footnote 4: The defendant also submits that the alleged victim's out-of-court statements should not have been presented to the Grand Jury, in that their admission into evidence would have undermined any exculpatory testimony that the alleged victim may have provided. The defendant makes this same argument in light of any expert testimony which may have been provided regarding recantation by domestic violence victims, and concerning any impeachment which may have occurred of the alleged victim during questioning by the People. Upon close inspection of the Grand Jury minutes, the Court finds no merit to this argument, and it does not warrant dismissal of the indictment.

Footnote 5: The Court agrees with the People's position that any gaps in the video raise an argument regarding the weight that should be accorded the evidence, and not as to its admissibility (see, People v. Orlando, 61 AD3d 1001 [2nd Dept 2009]).

Footnote 6: The Court notes that both the People and the defense have submitted affidavits in this case regarding the relationship between the testifying police officer and the sitting Grand Juror. It appears from these affidavits that the parties never had a personal, social or significant professional relationship, and that their past contact ceased years ago.

Footnote 7: "The sufficiency of the People's presentation is properly determined by inquiring whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted would warrant conviction by a petit jury" (see, People v. Manfro, 150 Misc 2d 1080, 1082 [1991], citing to People v. Pelchat, 62 NY2d 97, 105 [1984]).

Footnote 8: The Court notes that when a defendant attacks the credibility of the informer who provided information supporting a search warrant to an affiant officer, a hearing will not be granted. It will only be granted when the truthfulness of the affiant officer is challenged. See, People v. Solimine, 18 NY2d 477 [1966].

Footnote 9: The Court notes that the People sent a letter to the Court, and defense counsel, dated June 30, 2009, wherein they state that contrary to a statement made in their response to the defendant's omnibus motion, Detective Farkash did not attach Police Officer Fitzgerald's affidavit from the first search warrant to his application for the second search warrant. This distinction does not change the Court's conclusion.

Footnote 10: The Court finds that the judge had probable cause upon which to issue the second search warrant.