People v Bonie

[*1] People v Bonie 2016 NY Slip Op 51219(U) Decided on July 13, 2016 Supreme Court, Bronx County Iacovetta, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2016
Supreme Court, Bronx County

People of the State of New York,

against

Nasean Bonie, Defendant.



1431/14



For the People: ADA Marisol Martienz Alonso

For the Defense: Matthew Galluzzo, Esq.
Nicholas Iacovetta, J.

This decision sets forth in greater detail the rationale for the court's oral ruling on June 29, 2016 addressing whether the marital privilege would bar the receipt of certain evidence the People seek to introduce at defendant's trial.

The victim, Ramona Moore, defendant's tenant, disappeared on July 31, 2012 after neighbors observed a heated argument between Ms. Moore and the defendant. She was last seen alive moments later when an upstairs neighbor saw the defendant holding Ms. Moore in a choke hold with his hand over her mouth in the hallway outside her apartment. Although the police were called and arrived within minutes, they soon left without taking any further action when Ms. Moore failed to answer her door.

Despite the absence of a body, an indictment was filed on May 27, 2014 accusing the defendant of murdering Ms. Moore on July 31, 2012. An arrest warrant was issued on May 27, 2014. Defendant was arrested on May 29, 2014 in Mechanicsburg, Pennsylvania and returned to Bronx County, New York pursuant to the arrest warrant. The body of the deceased was discovered on April 17, 2015 when utility workers clearing brush discovered her skeletal remains in Orange County, New York while defendant was still awaiting trial for her homicide.

The People, prior to the start of defendant's trial in June, 2016, moved pursuant to People v Molineux, 168 NY 264 [1901] for permission to offer the following testimony on their direct case by the defendant's then separated but now divorced wife Krystal: On August 3, 2012 [*2]defendant told Krystal that his mother, Patricia Evans, would call her pretending to be Ramona stating, "Bitch, I'm not paying you or your husband any more rent. You will never see me again." Defendant asked his wife to report and show the voicemail to the police after she received it.

The People assert that the above evidence is powerful proof of defendant's consciousness of guilt. The defense counters by asserting that the above communication is protected by the marital privilege: "A husband or wife shall not be required, or, without consent of the other if living, allowed, to disclose a confidential communication made by one to the other during marriage" (see CPLR § 4502[b]; CPL § 60.10).

The marital privilege only applies to those statements made in confidence and "that are induced by the marital relation and prompted by the affection, confidence and loyalty engendered by such relationship" (see Poppe v Poppe, 3 NY2d 312, 315 [1957]).

This court finds that the above communication was not privileged on several different grounds based on both the nature of the communication itself and the status of the marital

relationship when it was made.[FN1]

The communication was not made out of affection, confidence or loyalty in the marital relationship. Instead, the communication reveals an attempt by the defendant to enlist his wife in a scheme to file a false report with the police in support of defendant's attempt to fabricate a false explanation for the victim's disappearance. The communication is a criminal offense in itself, Conspiracy in the Sixth Degree, PL § 105.00; Falsely Reporting an Incident in the Third Degree, PL §§ 240.50[3][a], [c], and as such should not be included in the privilege (see People v Wilkerson, 2016 WL 3190225 [3d Dept 2016], finding communications between defendant and spouse concerning "what need[ed] to be said" in order to "clear" him of the underlying charges not protected by the marital privilege, relying in part on People v. Watkins, 63 AD2d 1033, 1034 [2d Dept 1978] [internal quotation marks and citation omitted], lv denied 45 NY2d 785 [1978], cert denied 439 US 984 [1978] which noted the privilege "does not extend to communications between spouses in which they are jointly advancing a criminal conspiracy or aiding each other in the commission of ongoing crime"; see also People v Smythe, 210 AD2d 887 [4th Dept 1994], app denied 85 NY2d 943 [1995], finding that written communication between spouses not protected by marital privilege because it was sufficiently related to a conspiracy to cover up the murder that it may be said to have been made in pursuit of a criminal enterprise; People v Naylor, 120 AD2d 940 [4th Dept 1986], app denied 69 NY2d 714 [1986], finding communications by husband attempting to enlist his wife by threats of force in a criminal scheme not protected by the marital privilege because they were made in pursuit of a criminal enterprise).

Even if the communication was made in a non-threatening manner, it still would not be protected by the marital privilege because defendant was attempting to enlist his wife in pursuit of a criminal enterprise (see People v Smythe, supra; People v. Watkins, supra. However, the circumstances under which it was made demonstrate it was coupled with very subtle, thinly veiled threats if defendant's wife did not comply.

On July 10, 2012, slightly more than just three weeks before the August 3d communication, the defendant violently assaulted his wife, Krystal. He was arrested for that crime on July 16, 2012. He was accused of punching her numerous times, beating her with a belt buckle, cutting her hair and striking her head with a table tray. She lost consciousness and suffered a fractured orbital bone in one eye.[FN2] Krystal immediately left defendant and obtained an order of protection issued on July 20, 2012 which defendant received at his initial court appearance that same day. The order remained in effect until defendant's next court appearance on August 9, 2012. It specifically barred him from having any physical, verbal, telephone, voicemail or electronic communication with Krystal.

Defendant immediately violated the order by sending Krystal over 200 voice and text messages between July 20 and August 3, 2012, many of them minutes apart, none of which she answered.[FN3] He previously sent a like number of unanswered voice calls and text messages between July 10 and July 20, 2012. In one ominous voicemail, No.144 on July 15, 2012, defendant left a vivid medical description of the degree of force required to cause an orbital fracture and its consequences; another message, #252 on July 29, 2012 cryptically advises Krystal that a four year old boy was shot in the head down the block while at a basketball tournament; two messages on July 31, 2012, minutes apart, #'s 348 and 350, ask Krystal to call defendant ASAP; similar unanswered messages were left on August 1, 2012 and August 2, 2012, #'s 362, 370 and 374. On July 31, 2012, the date of the murder, defendant sent text messages stating, "the worst thing you can do is give me an ultimatum," #493, call me ASAP, #'s 501, 503, 504 stating, "you think its dam [sic] game girl if u [sic] only knew" (see People v Mills, 1 NY3d 269, 276 [2003], noting that communications occurring during the course of physical abuse are not shielded by the privilege.

A separate reason for finding that the marital privilege did not apply to the communication in issue is that it was not made in confidence. Confidentiality is a key element of the marital privilege (see CPLR § 4502[b]). Defendant told Krystal that she would receive a phone call from his mother, impersonating Ramona Moore, the content of which would be identical to the communication defendant and Krystal had on August 3d. Krystal received his mother's call the content of which was identical to the communication defendant had with Krystal on August 3d. The only plausible explanation as to why defendant's mother would call Krystal stating she was Ramona is because defendant asked his mother to do so. Thus defendant could not have intended that his identical communication to Krystal on August 3d would be confidential (see People v Melski, 10 NY2d 78, 81 [1961], finding that wife can testify to presence of visitors in company of her husband since the visitors were third parties present when the wife observed them with her husband so that the husband could not assert his wife's observation of the visitors' presence was confidential, and he voluntarily declared their presence to a state trooper).

The marital privilege is inapplicable for the separate reason that it was not induced by the marital relationship.

The privilege encompasses only those communications "which would not have been made but for the absolute confidence in, and induced by, the marital privilege" (see People v Melski, supra. The latter is a preliminary question for the court to answer on a question by question basis (see Matter of Vanderbilt, 57 NY2d 66, 73 [1982]). Interspousal communications are "presumed to have been conducted under the mantle of confidentiality," but the presumption is rebuttable (see People v Fields, 38 AD2d 231, 233 [1st Dept 1972], aff'd 31 NY2d 713 [1972]). The presumption is not rebutted by the fact that the parties are not living together, or that their marriage has deteriorated, for even in a stormy relationship a communication may be induced by absolute confidence in the marital relationship (see People v Fediuk, 66 NY2d 881, 883 [1985]). Therefore, it "is not appropriate for a trial court to have to determine whether a marital relationship is genuine or viable (see People v Starr, 213 AD2d 758, 759 [3d Dept 1995], app denied 95 NY2d 9890 [1995]).

Under the unusual circumstances of this case, however, it is abundantly clear and irrefutable that defendant's communication on August 3d was not induced by any confidence in the marital relationship. Although some of defendant's earlier messages may be viewed as an attempt at reconciliation, by August 3, 2012 he certainly knew any further attempts would be futile and, most importantly, he acknowledged that his marriage was over. The defendant sent the following voicemails to his estranged wife:

1. On July 12, 2012, #84, "I'm not trying to get back in ur [sic] life as ur [sic] man. I just want to finish this divorce."2. On July 12, 2012, #77, "How long have you been with the co [sic] guys! We are getting divorced."3. On July 13, 2012, #97, "2 [sic] wrongs don't make a right but I want to do what we should have done a long time ago get a divorce"4. On July 13, 2012, #104, after telling Krystal he saw her dancing with another man, defendant ends by stating, "lets talk about our divorce and what is our next step.5. On July 18, 2012, #189, part of which states, "you'll [sic] can get a divorce and move on."6. On July 29, 2012, #232, "Krystal don't every text me again in ur [sic] life."7. On July 30,2 012, #316, "I got divorce papers."8. On July 31, 2012, #319, although defendant professes his love for Krystal he tells her he will sign the papers this week and that she needs to explore other relationships.9. On August 4, 2012, #414, one day after the communication in issue, defendant states, [*3]"By next month the divorce will be finalized and i [sic] guess we can both get a new start at love and life."

It is axiomatic that a marital privilege requires a marital relationship as its basis (see Wolfle v United States, 291 US 7 [1934]. Whether the August 3d communication was made by the defendant in reliance upon the confidence and loyalty one spouse expects from another is necessarily determined by the state of the marital relationship on the date the communication occurred. When the relationship has deteriorated to the point of nonexistence at the time of the communication in issue, there is no public policy interest in preserving the harmony of the relationship (see People v D'Amato, 105 Misc 2d 1048 [Sup Ct, Bronx County 1980]). The privilege is designed to insure spouses that communications between them made in confidence induced by the marital relationship and prompted by affection, confidence and loyalty will remain confidential. The privilege, however, should not be permitted to accomplish anything more than what was intended (see People v Harris, 39 Misc 2d 193, 197 [Sup Ct, Bronx County 1963]). Under the circumstances of this case, there is no factual predicate in the record to support the conclusion that defendant "clung to the illusion that they could still reconcile" (compare People v Fediuk, 66 NY2d 881, 884 [1985] [internal citation omitted]).

This opinion shall constitute the decision and order of this court.

DATED: July 13, 2016

Bronx, New York

________________________________

Nicholas Iacovetta, AJSC Footnotes

Footnote 1:On July 11, 2016, just before the start of Krystal's testimony, the court denied a mid-trial request by the People to elicit additional communications made by defendant to Krystal. The court found the request untimely and unfair to the defense since it was not included in their pre-trial application concerning the marital privilege.

Footnote 2:Defendant pled guilty on February 26, 2015 to Assault in the Second Degree, a violent felony, and on April 22, 2015 was sentenced to a determinate term of 4 years plus 3 years Post Release Supervision.

Footnote 3:The messages continued after August 3, 2012.