Matter of Jonathan D.
Annotate this CaseDecided 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.
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