People v. Barba
| Decision Date | 31 July 2018 |
| Docket Number | 1571/2016 |
| Citation | 82 N.Y.S.3d 820,60 Misc.3d 1074 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Karla BARBA, Defendant. |
| Court | New York Supreme Court |
Murray Richman, Esq., Bronx, and Stacy Richman, Esq., for defendant.
Richard A. Brown, District Attorney of Queens County (Mary Kate Quinn, of counsel), for plaintiff.
Joseph A. Zayas, J.Defendant, charged with Assault in the First Degree and related offenses for allegedly slashing the complainant with a Samurai sword, moves for the disqualification of the District Attorney and the appointment of a special prosecutor. Defendant Barba argues that her prior refusal to cooperate as a complainant in a prior, high-profile domestic violence case — the case against then-Senator Hiram Monserrate — prosecuted by the Queens District Attorney's Office (QDAO), together with her subsequent filing of lawsuits against the QDAO and individual prosecutors arising from that refusal to cooperate, have caused the QDAO to treat her unfairly in this domestic violence prosecution, particularly since the current complainant herein likewise refuses to cooperate in the prosecution of defendant. Defendant claims that the unfair prosecutorial treatment was manifested most prominently when the People refused to offer defendant, indicted for a class B violent felony offense which carries a minimum sentence of 5 years' incarceration ( Penal Law 70.02[3][a] ), a non-incarceration plea.
The People oppose defendant's motion in its entirety, arguing that defendant's motion is procedurally barred because it was not filed, as statutorily required, with the Office of the Deputy Administrative Judge of the City of New York (Hon. George J. Silver), and instead was filed in the felony domestic violence Part (K-15). The People also argue that the motion is meritless because, inter alia when they declined to offer defendant the non-incarceration plea, the People were simply following their long-standing post-indictment plea policy and their policy to prosecute domestic violence cases notwithstanding the complainant's change-of-heart refusal to cooperate, where there is other sufficient evidence to prosecute the accused.
Defendant's motion requires the Court to determine whether defendant's prior legal skirmishes and prior tumultuous relations with the QDAO warrants the disqualification of the District Attorney and the appointment of a special prosecutor. For the reasons set forth below, the Court finds that disqualification of the District Attorney and the appointment of a special prosecutor is not warranted under the circumstances of this case. Accordingly, defendant's motion is denied in all respects.
Under Queens County Indictment Number 576/2009, Hiram Monserrate, who was then serving as a New York State Senator, was charged with, inter alia , Assault in the Second and Third Degrees against defendant Karla Barba,1 for allegedly intentionally cutting her face with a broken glass and recklessly causing injury to her arm. Despite the People's numerous attempts to get defendant Barba to cooperate as a complainant in the case against Monserrate, defendant ultimately refused to cooperate with the QDAO, claiming that her injuries were the result of an accident. Nonetheless, the QDAO followed its standard policy of proceeding to trial on the domestic violence case without the cooperation of defendant, who was then a complainant in the Monserrate case, inasmuch as there was other admissible evidence to support the charges against Monserrate. Notably, defendant's prior refusal to cooperate with the QDAO as a complainant in the People's case against then-Senator Monserrate received a significant amount of media attention throughout the course of the proceedings and trial. In October 2009, a judge of this Court convicted Monserrate of Assault in the Third Degree after a non-jury trial.
After Monserrate's trial, defendant Barba filed lawsuits against various city employees and agencies, including the QDAO, Assistant District Attorney (ADA) Scott Evan Kessler, and another ADA, both in their individual and official capacities. Specifically, defendant claimed that the prosecutors conspired to violate her "right to be free from unlawful imprisonment, detention, and excessive and forceful interrogation," and that they conspired "to harass, injure, and detain [her] in order to elicit statements from her accusing [Monserrate] of domestic violence" (see Giraldo v. City of New York , 2011 WL 2150148 [E.D.N.Y. 2011] ). On May 27, 2011, the Federal District Court denied, in part, ADA Kessler's and the other ADA's motion to dismiss, holding that defendant's claims of unlawful detention could be raised against the ADAs in their individual capacities ( id. ).
On appeal, however, the Second Circuit reversed the District Court's ruling, holding that the prosecutors were entitled to absolute immunity for their alleged misconduct in interrogating defendant (see Giraldo v. Kessler , 694 F.3d 161 [2d Cir. 2012] ). The Second Circuit specifically found that because Barba/Giraldo was such an "important witness" in the case against Monserrate, her interrogation by the prosecutors was "an integral part of [the prosecutors'] advocacy function," and that the ADAs' conduct was "well within their legitimate function as prosecutors" ( Giraldo at 167 ).
In the instant case, it is alleged that on June 8, 2016, defendant slashed her husband, Franklin Larrea, with a Samurai sword numerous times in front of his twelve-year-old son, Frank. During Larrea's 911 call, he stated, Upon the EMT's arrival, EMT personnel applied a tourniquet to Larrea while en route to the hospital to prevent additional blood loss. Larrea's medical records revealed that he lost four pints of blood and sustained two deep lacerations to the bone, which caused a loss of motor function and sensation to his left hand. During Larrea's hospitalization, he provided two videotaped statements describing the incident, stating that defendant Barba assaulted him with a Samurai sword. According to the People, defendant Barba also admitted that she "cut" Larrea on his wrist.
On June 9, 2016, defendant was arraigned on the felony complaint, charging, inter alia , Assault in the First Degree, a class B violent felony offense. The court set bail and issued a full order of protection in favor of complainant Larrea. In addition, the People served defendant with their plea policy and speedy trial waiver policy, which states that the "Queen's District Attorney's Office does not engage in post-indictment plea bargaining." Defendant and her attorney signed the waiver and the matter was adjourned to June 23, 2016.
The QDAO assigned Assistant District Attorney Simiyon Haniff to prosecute the case against defendant Barba. ADA Haniff was not a member of the Domestic Violence Bureau or even employed by the QDAO during the Monserrate prosecution. Moreover, it was internally determined that Kessler, the Chief of the Domestic Violence Bureau, would not supervise the case and, instead, Deputy Bureau Chief, Kelly Sessoms-Newton, who was not involved in the Monserrate prosecution and was not named in the civil lawsuit, would supervise the matter and any plea negotiations.
At the June 23, 2016 appearance, the People made a plea offer of fifteen years' incarceration, which defendant rejected. In addition, defendant made a bail application due to an alleged change in circumstances. Specifically, defendant cited to complainant Larrea's conversation with defense counsel in which he stated that he was injured accidentally when "knives fell on" him during the course of an argument with defendant Barba.
On July 28, 2016, defendant was indicted for, inter alia , Assault in the First Degree. After the Grand Jury presentment, Larrea informed ADA Haniff that he no longer sought to "press charges" against defendant Barba. At defendant's August 2, 2016 arraignment, defendant Barba again requested bail reduction and argued that the order of protection was unnecessary. To support her position, defendant presented an affidavit from Larrea reasserting that his injuries were the result of an accident. In the affidavit, however, Larrea also admits that he and defendant had an "altercation that resulted in physical injury to his arm." The court denied defendant's request.
In May 2017, the case was transferred to ADAs Nicole Reid and Mary Kate Quinn, neither of whom worked in the QDAO during Monserrate's prosecution. Complainant Larrea informed the newly assigned ADAs that he did not wish to speak to anyone from their office. At the next court appearance, the People did not have a new plea offer for defendant.
Following the completion of suppression hearings in which the court denied suppression, defense counsel requested a plea offer with a probationary sentence, which the People refused as defendant Barba was charged with a class B violent felony offense, for which a five-year minimum period of incarceration was required. Nonetheless, the People agreed to arrange a meeting between defense counsel and Deputy Bureau Chief Sessoms-Newton. After meeting with defense counsel and speaking with Larrea and his son, the People determined that it would prosecute defendant with or without Larrea's cooperation. The People, however, informed defendant that it would not oppose the imposition of the five-year minimum sentence and would not mandate that defendant plea to the entire indictment.
In April, 2018, defendant filed a motion for an order appointing a special prosecutor, arguing that her refusal to cooperate in the Monserrate case and her ensuing lawsuits have led to unfair treatment by the People during the prosecution. Specifically, defendant cites the People's decision not to offer a non-incarceratory plea deal and their decision to prosecute defendant despite Larrea's refusal to cooperate.
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...domestic violence cases... and that prosecutors must proceed without the complainant as often as 64% of the time" (see People v. Barba , 60 Misc.3d 1074, 82 N.Y.S.3d 820 (Sup. Ct., Queens County 2018) (internal citations omitted) ). The People were not without 89 N.Y.S.3d 883remedy here. Un......