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Criminal Defense: Witness Unavailability


Spread the word: Phone calls made in jails and prisons are often subject to recording. Here, the (New York) department of corrections recorded the defendant’s phone calls to the complainant which, inter alia, could very well served as the proof of yet another criminal charge. The original set of domestic violence charges stems from the defendant assaulting the complainant and her son. In one instance of assault, an off-duty police officer (as well as the defendant) were shot. New York domestic violence cases are difficult to prosecute because the failure of the complaining witness to comply with court orders and follow through with pursuing criminal charges against the perpetrator of domestic violence. As is the case here, sometimes the perpetrator of domestic violence takes an active role in preventing the witness (complainant) from coming forward. The issue becomes whether statements of the complaining witness can be utilized against the defendant when the defendant prevents the complainant from testifying against him.

In the instant matter, “[t]he People have moved to admit into evidence at trial out-of-court statements made by the complainant at or around the time of the commission of the crime, both on audiotape to an Assistant District Attorney, and before the Grand Jury, claiming that the complainant is unavailable to testify at trial due to misconduct by the defendant. The defendant opposes the motion and a hearing was held on July 20, 2015, and continued on September 11, 2015, September 25, 2015, and concluded on October 30, 2015.” The pertinent law is as follows:

A defendant in a criminal case enjoys the right to confront the witnesses against him at trial pursuant to the Sixth Amendment of the United States Constitution. This right can be voluntarily waived by a defendant; it can also be forfeited if his own misconduct renders a witness unavailable to testify at trial. United States v. Mastrangelo, 693 F 2d 269 (1982), cert denied 456 U.S. 973 [1982]; Snyder v. Mass, 291 U.S. 97 (1934). If a witnesses’ unavailability is procured by the defendant through chicanery (United States v. Mayes, 512 F 2d 687 [6th Cir, 1975], cert den 422 U.S. 1008 [1975]); by threats (United States v. Balano, 618 F 2d 624 [10th Cir, 1979], cert den 449 U.S. 840 [1980]); or by actual violence or murder (United States v. Thevis 665 F 2d 616 [5th Cir, 1982], cert den 456 U.S. 1008 [1982]), the defendant cannot assert his Confrontation Clause rights or the rules against hearsay to prevent out-of-court statements from being admitted against him. Any other result would mock the very system of justice the Confrontation Clause was designed to protect. United States v. Mastrangelo, supra, at 273. Included in witness intimidation is the use of a relationship in which a defendant has a “controlling” or “coercive” effect on the witness. People v. Byrd, 51 A.D.3d 267(1st Dept. 2008); see also People v. Johnson, 93 NY 2d 254 (1999). This is especially true in domestic violence cases. See People v. Santiago 2003 NY Misc Lexis 829 (NY Co. Sup Ct 2003, Atlas, J.)

New York State has adopted this rule based on the sound public policy of protecting the integrity of the adversarial process by deterring litigants from tampering with witnesses who may testify adversely to them. People v. Geraci, 85 NY 2d 359 (1995). At a hearing to determine whether such misconduct occurred, causing a witness to become unavailable to the People, the prosecutor’s burden is to show, by clear and convincing evidence, that the witness’ unavailability was procured by the defendant’s misconduct. Geraci, supra, at 366; People v. Cotto, 92 NY 2d 68 (1998); Holtzman v. Hellenbrand, 92 AD 2d 405 (2nd Dept. 1983) If the People meet that burden, the defendant is precluded from asserting either the constitutional right of confrontation, or the evidentiary rules against the admission of hearsay, to prevent the admission of the witness’ out-of-court declarations. Geraci, at 366; Cotto, at 76. These statements are not limited to Grand Jury testimony but can include other out-of-court statements. Cotto at 77.

Here, the Defendant made several phone calls to the defendant. These phone calls were recorded and, later, evaluated by the court which retells the following factual record:

The actual content of 16 of those phone calls, tape-recorded by the Dept. of Correction, reveals the full extent of the defendant’s efforts to induce the complainant not to testify against him. Within the context of a relationship fraught with domestic violence (see P v. Santiago, supra), as told to ADA Espinal by the complainant, with multiple incidents during the year and a half before the assault alleged in this indictment occurred, and including a broken nose, the defendant’s push and pull on the complainant emotionally in his calls demonstrates his attempt to enlist her aid, manipulate her to “stand by him” and “not to let anything come between” them, through a combination of sweet talk, begging, guilt trips, declarations of love, and warnings against others. The defendant exhorted the complainant in his calls that he needed her “to work with me”, to “stop holding back”, that he needed her “to maintain” because it was hard for him in jail; that he needed her to “step up and believe in me”. Not so subtly, the defendant reminded the complainant that he would “fight to the last drop” and that he was “coming home”.

Again, phone conversations that are made from jail/prison are subject to recording. The Defendant not only put the nail in his coffin (preventing the testimony by complainant) by the making the above mentioned phone calls but the defendant “revealed his own misconduct” by interfering with the witness that, no doubt, would eventually be called by the District Attorney’s Office. The Court found that the defendant not only threatened her but complimented her and “exhorting her to stay the course…The conversations went on for weeks, at great length, all in a similar vein. The defendant even went so far as to ask the complainant to marry him, offer a trip to Aruba, and talk about buying a house for her.” The court finds that “defendant’s brazen and repeated defiance of a full order of protection issued by the court can be viewed as an implicit threat to the complainant, since it shows he is refusing to obey the law.” Pp. 13 (citations omitted). The Court holds that

although the complainant is physically available to testify, she has been rendered unavailable, as a witness, for the People, due to the defendant’s actions, by her two recantations, resulting in the People having to file Brady notifications. See People v. Cotto, supra; People v. Geraci, supra; People v. Hernandez, 256 AD 2d 18 (1st Dept 1998), lv den, 93 NY 2d 874 (1999) (domestic partner victim who refuses to testify and expresses hostility toward the prosecution is unavailable to, and not in the control of, the People); People v. Turnquest, 35 Misc 3d 329 [Sup. Ct., Queens County 2012, Zayas, J.]

In sum, “[t]he Court therefore finds that the People have met their burden, by clear and convincing evidence, to establish that the defendant engaged in misconduct that caused the complaining witness to become unavailable to the People. As a result, the People are permitted to introduce at trial both the audiotaped interview of the complainant at the hospital the day after the crimes alleged in the indictment, as well as the complainant’s two Grand Jury testimonies, since the defendant has forfeited, by his misconduct, his right of confrontation and his right to assert the evidentiary rules as to the exclusion of hearsay testimony.” Pp. 16

The case is People v. Bernazard, 1764/2013, NYLJ 1202747182458, at *1 (Sup., QU, Decided December 15, 2015)

Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954) 998-2918 (FLA)


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