Y.A. Mullings Corp. v. Hall, Index No. 53902/2020

CourtNew York Civil Court
Writing for the CourtJack Stoller, J.
Citation155 N.Y.S.3d 41,73 Misc.3d 476
Docket NumberIndex No. 53902/2020
Decision Date13 September 2021
Parties Y.A. MULLINGS CORP., Petitioner, v. Veronica HALL, et al., Respondents.

73 Misc.3d 476
155 N.Y.S.3d 41

Y.A. MULLINGS CORP., Petitioner,
Veronica HALL, et al., Respondents.

Index No. 53902/2020

Civil Court, City of New York, Kings County.

Decided on September 13, 2021

155 N.Y.S.3d 42

For Petitioner: Pamela Smith, Brooklyn

For Respondent: Sarah Zaboli

Jack Stoller, J.

The Decision and Order on this motion are as follows:

Y.A. Mullings Inc., the petitioner in this proceeding ("Petitioner") commenced this holdover proceeding against Veronica Hall, Oriceida Yearwood, Marcus Yearwood, and Malcolm Yearwood ("Respondents") seeking possession of 394 Montgomery Street, Apt. 4B, Brooklyn, New York ("the subject premises") on the allegation that Respondents

155 N.Y.S.3d 43

have committed a nuisance. The matter had been calendared for trial. Petitioner now moves to permit its witnesses to testify at a closed hearing at which Respondents will not be able to observe the faces or ascertain the identities of the witnesses.

The predicate notice, incorporated into the petition by reference, alleges that Respondents and their invitees have congregated in the common areas of the building in which the subject premises is located ("the Building") and have made noise, left garbage, harassed tenants in the Building, assaulted Petitioner's principal, sold marijuana, broken the lock to the common entrance of the Building, and trespassed onto the roof of the Building at the same time that gunshots were fired.

Petitioner's attorney affirms in support of the motion on information and belief that one of Respondents and his friends are members of a violent street gang that is "notorious" for being armed, "prone to engaging in violent behavior including murder," and "quick to wreak retribution upon anyone that they feel has wronged them." Petitioner's attorney affirms that ten witnesses had committed to testify against Respondents, but that "many" of them "indicate that they are terrified of revealing their identifies to" Respondents. Petitioner's attorney also affirms that several tenants in the Building have been threatened for calling police about Respondents and an employee of Petitioner has been threatened for providing information to Petitioner. Petitioner's attorney affirms that "[v]irtually every" nonparty witness would prefer to testify without revealing their names or addresses and without exposing their faces.

In support of its motion, Petitioner annexes press reports and press releases concerning various crimes committed in Brooklyn. One of the articles, dated June 21, 2019, references a shooting at the Building. Another one, dated July 14, 2021, references someone being murdered elsewhere in Brooklyn. Petitioner's attorney affirms that her witnesses told her that they had seen the victim in the Building. Petitioner does not connect the remaining articles to anything having to do with Respondents or the Building.

In a criminal trial, the Court may limit cross-examination about a witness’ identity, address, and occupation upon a showing that a cognizably valid interest of the witness is involved, i.e., a showing that the question will harass, annoy, humiliate or endanger the witness. People v. Waver , 3 N.Y.3d 748, 750, 788 N.Y.S.2d 630, 821 N.E.2d 934 (2004), People v. Stanard , 42 N.Y.2d 74, 84, 396 N.Y.S.2d 825, 365 N.E.2d 857, cert. denied sub nom. Stanard v. New York , 434 U.S. 986, 98 S.Ct. 615, 54 L.Ed.2d 481 (1977). Upon making such a showing, the burden then shifts to the examining party to demonstrate the materiality of the requested information. Id. The Court must then, in the exercise of discretion, weigh the various interests involved and determine whether the testimony is sufficiently material to overcome the interest of the opposing party. Id. Although not exhaustive, the following factors show materiality: (1) the extent to which the right to cross-examine is infringed, (2) the relevance of the testimony, (3) the nature of the crime charged and the quantum of proof established aside from the testimony of the witness, (4) the nature and significance of the interest or the right asserted by the witness, and (5) the nature of and extent to which the proposed cross-examination would produce evidence favorable to that party and, of course, whether such evidence would be merely cumulative. Id.

Factors supporting anonymous testimony include the risk of a premature

155 N.Y.S.3d 44

termination of an especially significant ongoing police investigation, People v. Frost , 100 N.Y.2d 129, 134, 760 N.Y.S.2d 753, 790 N.E.2d 1182 (2003), People v. Ortiz , 74 A.D.3d 672, 673, 903 N.Y.S.2d 399 leave to appeal denied , 15 N.Y.3d 894, 912 N.Y.S.2d 582, 938 N.E.2d 1017 (2010), People v. Tai , 145 Misc. 2d 599, 607, 547 N.Y.S.2d 989 (S. Ct. N.Y. Co. 1989) ; a witness who is a confidential informant working with police, Id.; where a criminal defendant already knew the original names of the witnesses before the witnesses received new identities and relocation for their protection; where the District Attorney provided the defense with the arrest record of the witnesses up to the month before trial, Stanard, supra , 42 N.Y.2d at 84, 396 N.Y.S.2d 825, 365 N.E.2d 857 ; where the People showed convictions of members of the defendant's family, Frost, supra , 100 N.Y.2d at 132-33, 760 N.Y.S.2d 753, 790 N.E.2d 1182 ; where another eyewitness had been murdered; where a defendant had recently been indicted for slashing five inmates with whom he had been jailed, as well as a criminal history which included other violent crimes, Id. ; and when knowledge of a police officer's shield number already opens an avenue of investigation to a defendant. People v. Washington , 40 A.D.3d 228, 229, 835 N.Y.S.2d 142 (1st Dept.), leave to appeal denied , 9 N.Y.3d 927, 844 N.Y.S.2d 182, 875 N.E.2d 901 (2007). Petitioner has not identified any of these factors on this motion practice.

A witness may also remain anonymous upon proof of the...

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