People v Ormand

[*1] People v Ormand 2009 NY Slip Op 52440(U) [25 Misc 3d 1237(A)] Decided on December 7, 2009 Supreme Court, Kings County D'Emic, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 7, 2009
Supreme Court, Kings County

The People of the State of New York

against

Henry Ormand, Defendant.



12527/08



Attorney for the People:

ADA Stephanie Fritts

Office of District Attorney, Kings County

350 Jay Street

Brooklyn, NY 11201

(718)-250-2264

Attorney for the Defendant:

Allison Jordan, Esp.

Legal Aid Society

111 Livingston Street

Brooklyn, NY 11201

(718)-243-6494

Matthew J. D'Emic, J.

Defendant is accused of violating orders of protection issued in favor of his former girlfriend and their child. The People have moved for an order: (1) seeking the introduction of uncharged bad acts and crimes; and (2) requiring the defendant to provide handwriting exemplars. Defendant moves the court to preclude introduction of an original or certified copy of the underlying order of protection in this case. This order decides all three motions.

A.PRIOR UNCHARGED CRIMES

The People seek to introduce evidence of two prior bad acts of the defendant pursuant to People v Molineaux, 168 NY 264. With respect to the first incident on January 14, 2008, where it is alleged that the defendant punched the complainant, the court finds that the prejudicial effect of the allegation outweighs its probative value. As for the defendant's guilty plea to arson and other charges on January 15, 2008 under indictment 614/2008, the probative value is much greater than the prejudicial effect. [*2]

That plea resulted in the issuance of the orders of protection, the alleged violation of which resulted in this indictment. As such, the facts of that case and the issuance of the order are necessary for the jury to understand this case. (People v Dodson, 243 AD2d 644; People v Shorey, 172 AD2d 634). The People may, therefore, elicit the facts of that case on their direct case. The court will, however, give the jury a limiting instruction.

B.HANDWRITING EXEMPLARS

The People also seek handwriting exemplars from the defendant for jury comparison.

The motion is granted.

CPL §240.40(2)(vi) allows the court to order the defendant to "provide specimens of his handwriting" which under CPLR §4536 can be compared to disputed writings if "proved to the satisfaction of the court to be the handwriting of the person claimed to have made the disputed writing..."

Since the unsigned letters in question will probably be a point of dispute during the trial, it is ordered that the defendant provide a handwriting exemplar of reasonable length. This will be done in open court, in the presence of counsel for both sides so that there can be no dispute as to the exemplar's authenticity.

In as much as handwriting is a non-testimonial, neutral, physical act it lies outside the scope of the defendant's Fifth Amendment privilege against self-incrimination (US v Braverman, 376 F.2d 249; People v Goldberg, 19 NY2d 460).

C.CERTIFIED COPY OF ORDER OF PROTECTION

The defendant moves to preclude the introduction of a certified copy of the order of protection issued by this court on the People's case, as impermissible hearsay.

The motion is denied.

Contrary to the contention of the defendant, the introduction of a court certified document is non-testimonial and therefore does not constitute impermissible hearsay. It is firmly rooted in New York jurisprudence that certified or original court records are self-proving without the need for further testimony. (CPLR 4540[b]; Richardson on Evidence §9-301 [11th Ed]; McCormack on Evidence §229 [6th Ed]). The People may present such evidence on their direct case.

This constitutes the Decision and Order of the Court.

____________________________

Matthew J. D'Emic

J.S.C.