People v Dismel
Annotate this CaseDecided on August 7, 2007
Supreme Court, Kings County
The People of the State of New York
against
Wade Dismel, Defendant.
5568 / 2007
Michelle Kaminsky, Esq.
Assistant District Attorney
For the People
Dana Cohen, Esq.
Legal Aid Society
For the Defendant
John M. Leventhal, J.
The defendant stood trial for various sex offenses, inter alia, multiple counts of Rape in the First Degree. This decision explains the Court's ruling allowing the defendant to introduce the complainant's Grand Jury testimony as a prior inconsistent statement.
ISSUE PRESENTED
The issue presented is whether the failure of the complaining witness to mention many of the alleged sex offenses during her Grand Jury testimony constitutes a prior inconsistent statement which may be used to impeach her trial testimony.
THE FACTS
The People alleged that on June 25, 2006, defendant committed various sex offenses against the complainant. The case was first presented to the Grand Jury on June 28, 2006, by ADA Seth Goldman.
The relevant Grand Jury testimony proceeded as follows: The complainant testified that on the day in question, defendant found out that she was trying to evict him from her apartment. The presenting ADA asked, "Did he do anything else?" The complainant responded that defendant started choking her. The ADA elicited a description of the alleged choking and then asked, "And what, if anything, else happened?" The complainant explained how she was able to get out from under defendant, and how he then threw her on the floor. The ADA next asked, "Did he do anything else?", and complainant responded that defendant started hitting her. After [*2]questioning the complainant as to the details of how defendant hit her, the ADA then asked, "Now, did there come a time when you tried to get up [off the floor]?" The focus of the questioning then shifted to what occurred after complainant got off the floor, at which time defendant allegedly put his penis in her mouth and later had forcible sexual intercourse with her.
The Grand Jury returned an indictment under indictment 5107/2006 for one count each of Rape in the First and Second Degrees, Sexual Abuse in the First and Second Degrees and Sexual Misconduct. This indictment was filed on August 1, 2006.
Nearly one year after the original Grand Jury presentation, ADA Michelle Kaminsky re-presented the case to a Grand Jury. During this Grand Jury presentation, the complainant testified that on the date in question defendant had forcible vaginal sexual intercourse with her a total of four times, that he inserted his penis in her mouth and her rectum and that he inserted a knife handle into her vagina. Defendant was indicted under superseding indictment number 5568/2007 for, inter alia, four counts of Rape in the First Degree, six counts of Sexual Abuse in the First Degree, two counts of Criminal Sexual Act in the First Degree and Aggravated Sexual Abuse in the Third Degree.
The People represented that complainant's testimony at trial would align with that of her second Grand Jury testimony. Defense counsel argued that complainant's trial testimony would be inconsistent with her testimony during the first Grand Jury presentation, in that many of the sex offenses about which she was expected to testify were not mentioned during her initial Grand Jury testimony. Thus, defense counsel concluded this previous testimony constituted a prior inconsistent statement via omission, which she should be permitted to use for impeachment purposes. The People opposed, arguing that the complainant's initial Grand Jury testimony did not meet the standard for omission as outlined in People v. Bornholdt, 33 NY2d 75 (1973). The Court granted defense counsel's applicationand permitted the impeachment use of complainant's initial Grand Jury testimony. This opinion explains the Court's decision.
THE LAW
It is well established that a witness may be impeached by proof of a prior statement made by that witness which is inconsistent with his or her trial testimony. Direct contradiction is not necessary for a finding of inconsistency (People v. Wise, 46 NY2d 321 [1978]) and, indeed, the witness' silence or omission of information on a prior occasion may be deemed a prior inconsistent statement for impeachment purposes (see People v. Bornholdt, 33 NY2d 75, 88 [1973]).
However, proof that the witness simply failed to state a fact, or to state that fact more fully at a prior time, is not sufficient to establish inconsistency: "It need also be shown that at the prior time the witness' attention was called to the matter and that he was specifically asked about the facts embraced in the question propounded at trial." (id.)
The Bornholdt standard has been strictly appliedin situations in which a party seeks to impeach a trial witness with his or her Grand Jury testimony under the theory that the witness' failure to mention a fact during such testimony constituted a prior inconsistent statement (see, e.g., People v. Broadhead, 36 AD3d 423 [1st Dept 2007]; People v. Green, 299 AD2d 267 [1st Dept. 2002]; People v. Gonzalez, 244 AD2d 422 [2nd Dept. 1997]; People v. Vega, 169 AD2d 586 [1st Dept 1991]). For example, in People v. Gonzalez, defendant was accused of selling [*3]heroin to an undercover officer. The officer testified at trial that he vouchered both money and drugs following defendant's arrest. During the Grand Jury testimony, however, the officer only mentioned vouchering drugs. The Appellate Division held that defendant was properly precluded from impeaching the officer by questioning him about his failure to mention to the Grand Jury that he also vouchered money, because the Grand Jury minutes reveal he was never specifically asked, "What did you voucher?" In People v. Broadhead, a witness testified during cross examination that defendant made a verbal threat during the alleged robbery; the witness had not mentioned this threat during his Grand Jury testimony. The Appellate Division held that the omitted fact was not a prior inconsistent statement because the Grand Jury questioning did not call for the information, and the omission of this detail was not "unnatural."
However, courts have been more amenable to the argument that an omission during the Grand Jury testimony of a defendant constitutes an inconsistent statement which can be used to impeach the defendant's trial testimony (see, e.g., People v. Bruno, 34 AD3d 220 [1st Dept 2006]; People v. Montalvo, 285 AD2d 384 [1st Dept 2001]). In People v. Montalvo, for example, the defendant asserted for the first time during his trial testimony that he was justified in stabbing the complainant. The court, upholding the impeachment use of defendant's Grand Jury testimony, reasoned that the Grand Jury testimony afforded defendant the opportunity to forestall indictment and present any exculpatory information, and therefore defendant's omission of an indicator of self defense was unnatural. The court also noted that defendant's explanation to the Grand Jury was "not limited to facts that the examining ADA chooses to elicit" (id. at 385).
The Court of Appeals has articulated a separate, but related, standard for determining whether an omission constitutes a prior inconsistency: "when given circumstances make it most unnatural to omit certain information from a statement, the fact of the omission itself is admissible for purposes of impeachment" (People v. Savage, 50 NY2d 673, 679 [1980]). Given the circumstances surrounding the first Grand Jury presentation, it was "most unnatural" for the complainant to fail to mention three additional incidents of rape and other sex offenses. The complainant knew that the purpose of her Grand Jury testimony was to bring charges against defendant for the crimes allegedly committed on June 25, 2006, and it would be "natural" for a person in her position to supply the Grand Jury with as much information as possible so that the alleged abuser could be held fully accountable.
The People argued that the relevant standard is supplied by Bornholdt, not Savage, and that complainant's attention was not specifically drawn to the three additional incidents of rape and other sex offenses to constitute an omission. However, even under the arguably more restrictive standard of Bornholdt, the Court finds that the complainant's failure to mention some of the alleged sex offenses constitutes a prior inconsistent statement.
It is true that complainant's testimony was guided by the ADA's line of questioning, and that the ADA never specifically asked her whether defendant sexually assaulted her before she got off of the floor. However, complainant was given the opportunity to respond to three open-ended questions to the effect of "Did he do anything else?" during the relevant time period, to which she could reasonably have been expected to mention these additional acts. These were not detailed questions that directed complainant's attention to specific details and restricted her reply, but rather open-ended questions that called for a narrative response. In this way, the line of questioning at the first Grand Jury presentation is more akin to the cases permitting the [*4]impeachment use of a defendant's Grand Jury testimony under the theory that defendant's narrative presentation to the jury was not restricted by the ADA (see Montalvo, 285 AD2d 384).
The question of whether an inconsistency exists is in the discretion of the court (see People v. Duncan, 46 NY2d 74, 80 [1978]).Even if it is arguable that complainant's attention was not sufficiently drawn to the relevant subject matter, in case of doubt regarding whether a statement is, indeed, inconsistent, "the balance should be struck in favor of admissibility, leaving to the jury the function of determining what weight should be assigned the impeachment evidence" (Wise, 46 NY2d at 327). Furthermore, the right of a defendant to present a defense weighs heavily on the side of permitting the impeachment use of the complainant's Grand Jury testimony (see Chambers v. Mississippi, 410 US 284 [1973]).
CONCLUSION
For the foregoing reasons, the Court finds that complaint's prior Grand Jury testimony constitutes a prior inconsistent statement, and grants defense counsel's application to use such for impeachment purposes.
This constitutes the decision of this Court.
_________________
J.S.C.
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