People v. Encarnacion

• Decision Date: 23 June 2011
• Docket Number: 4268C/05,2715
• Parties: The People of the State of New York, Respondent, v. Samuel Encarnacion, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

2011 NY Slip Op 05433

The People of the State of New York, Respondent,
v.
Samuel Encarnacion, Defendant-Appellant.

4268C/05
2715

SUPREME COURT, APPELLATE DIVISION First Judicial Department

ENTERED: JUNE 23, 2011

Richard T. Andrias, J.P.

David Friedman

James M. Catterson

James M. McGuire

Nelson S. Román, JJ.

Defendant appeals from a judgment of the Supreme Court, Bronx County (Elizabeth A. Foley, J.), rendered December 19, 2007, convicting him, after a jury trial, of murder in the second degree, attempted murder in the second degree, and two counts of assault in the second degree.

Richard M. Greenberg, Office of the Appellate Defender, New York (Joseph M. Nursey and Alexis Agathocleous of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Rither Alabre and Peter D. Coddington of counsel), for respondent.

ROMÁN, J.

The salient issue on this appeal concerns the United States Constitution's Confrontation

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Clause and whether the trial court, in allowing the prosecution to use a witness's grand jury testimony in its case-in-chief, without producing the witness, violated defendant's right of confrontation. Additionally, we are called upon to decide whether in allowing the prosecution to present DNA evidence through a witness who did not personally perform all of the DNA testing about which she testified, the trial court further violated defendant's constitutional right of confrontation. After a review of the record, we hold that under the circumstances, defendant's right of confrontation was not violated when the prosecution used grand jury minutes in its case in chief. Notwithstanding that defendant failed to preserve the DNA issue, as an alternative holding we conclude that the prosecution's use of the DNA evidence did not violate his constitutional right of confrontation.

On January 20, 2005, in response to a 911 call, the police and Emergency Medical Technicians (EMTs) arrived at premises located at 1235 Harrod Avenue, Bronx, NY. Defendant met both the police and the EMTs in the lobby and told them that while he was out getting food someone stabbed his girlfriend and her cousin, killing the cousin. Defendant told the police that he had been told by his girlfriend that this crime had been committed by "some black guy." Defendant led the police and the EMTs to apartment 8J, where they discovered a woman, later identified as Ofelia Torres ¹ (Ofelia), who was defendant's girlfriend, lying on the ground with multiple stab wounds. A man, dead and with multiple stab wounds, later identified as Johnny Torres (Johnny) and Ofelia's cousin, was lying in a pool of blood in the hallway. Blood was found at multiple locations in the apartment, including the hallway and the bedroom.

Inspection of the premises led to the discovery of a garbage bag in the compactor room. The bag was consistent with bags also found in the apartment and contained bloody clothing, namely a pair of sweat pants, a white t-shirt, a pair of jeans, and a pair of sneakers. The bag also contained several bloody knives. These items were ultimately tested for DNA, yielding DNA profiles matching defendant, Johnny and an unidentified female.

Ofelia was transported to the hospital, where, upon examination, it was noted that she had numerous stab wounds throughout her body. When asked by a doctor to identify her attacker, Ofelia verbally identified defendant. An autopsy revealed that Johnny died from stab wounds to his neck and torso. The police interviewed defendant, who, upon being told that Ofelia was still alive, broke down and gave an altogether different account from that which he had given to the police at the scene. In a written statement, defendant stated that on the night in question he arrived at his apartment after visiting a friend. Ofelia was already home with Johnny. Upon his arrival, defendant started to play with the dog when Ofelia became upset, contending that defendant was "no good" because he had not left her any money to purchase food. Johnny then also stated that defendant was "no good" and that Ofelia should end their relationship. Defendant and Johnny got into a verbal altercation and thereafter Johnny hit him. While in the kitchen, a fight ensued, Ofelia tried to intervene and defendant "blacked out." Defendant was

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unsure how he got hold of a knife, only recalling that he "lost [his] sense and everything happened." Thereafter, defendant noticed that both Johnny and Ofelia were on the floor. Scared, defendant went to a neighbor's apartment and asked him to call an ambulance. In a panic, defendant took off his pants, and put "everything" in a bag, including the knife, thereafter throwing the bag in the garbage. Defendant also gave the police a videotaped statement, largely consistent with his written statement, adding that while he did in fact stab Ofelia and Johnny, he could not recall how, remembering only that "everybody's bleeding and I got a knife in my hand." While in police custody, defendant also wrote Ofelia a letter, wherein he apologized for the instant event and pleaded for forgiveness.

Prior to trial, Ofelia testified before the grand jury about the foregoing events. Ofelia stated that when defendant came home that night, she was with her dog and her cousin Johnny. While in the bedroom, she and defendant proceeded to have a discussion regarding their relationship. Ofelia told defendant that she wanted to end their relationship and defendant responded by insulting her prior boyfriends. Thereafter, defendant went to the kitchen and got a knife. Telling Ofelia that "[i]f I can't have you, nobody can have you," he stabbed her repeatedly, ultimately stabbing her 20 times throughout her chest and back and nearly severing a finger. Johnny who had been elsewhere in the apartment tried to intervene and defendant stabbed him to death. Defendant, acknowledging that he had killed Johnny, stated, "Johnny's dead. Look what I did. How am I gonna get away with this. . ." Defendant stabbed Ofelia again, carried her to the living room, and told her he was going to let her die. Changing his mind, however, defendant went to a neighbor's apartment and called an ambulance.

Defendant was tried and on the foregoing evidence convicted of all charges in the indictment, namely second degree murder (Penal Law § 125.25[1]), attempted second-degree murder (Penal Law § 110/125.25[1]), and two counts of first degree assault (Penal Law § 120.10[1] and [2]). Defendant was sentenced to an indeterminate prison term of 20 years to life for the murder, to run consecutively with three concurrent determinate 20 year prison terms. He was also sentenced to five years of post-release supervision.

Confrontation Clause and the Use of Grand Jury Minutes

Defendant contends that in allowing the prosecution to use Ofelia's grand jury testimony in its case-in-chief, the trial court violated his constitutional right of confrontation because the prosecution failed to establish that defendant's misconduct induced Ofelia's refusal to testify, thereby rendering her unavailable. We disagree.

The Confrontation Clause of the Sixth Amendment to the United States Constitution requires that in all criminal prosecutions a defendant is entitled to confront all witnesses who testify against him or her (US Const Sixth Amend; Melendez-Diaz v Massachusetts, _ US _, 129 S Ct 2527, 2531 [2009]; Davis v Washington, 547 US 813, 821 [2006]; Crawford v Washington, 541 US 36, 50 [2004]). Generally, out of court statements, such as grand jury testimony, cannot be used as evidence in-chief against a defendant in a criminal action, as such evidence would in fact run afoul of a defendant's constitutional right of confrontation (People v Cotto, 92 NY2d 68, 77 [1998]; People v Geraci, 85 NY2d 359, 365 [1995]; People v Byrd, 51 AD3d 267, 272-273 [2008], lv denied 10 NY3d 956 [2008]). However, the right to confront witnesses is not absolute

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and there are of course exceptions.

The United States Supreme Court has repeatedly held that the right of confrontation can be waived or forfeited not only by consent but also by misconduct (Illinois v Allen, 397 US 337, 343 [1970]; Snyder v Commonwealth of Massachusetts, 291 US 97, 106 [1934]; Diaz v United States, 223 US 442, 452-453 [1912]). Thus, when a witness's "silence is procured by the defendant himself, whether by chicanery, or by actual violence or murder, the defendant cannot then assert his confrontation clause rights" (United States v Mastrangelo, 693 F2d 269, 272-273 [2d Cir 1982] [internal citations omitted]), because through his or her misconduct, defendant has forfeited both the constitutional right to confront a witness and the right to assert otherwise viable evidentiary rules barring the use of hearsay as evidence-in-chief (Cotto at 75-76; Geraci at 365-366).

Whereas the court in Mastrangelo limited forfeiture to instances where a defendant procures a witness's silence by trickery, murder or violence (Mastrangelo at 272), in this State we define misconduct much more broadly to include intimidation and bribery (Geraci at 369-370), threats (Cotto at 76), and the use of a relationship to improperly procure a witness's silence (People v Johnson, 93 NY2d 254, 259 [1999]; Byrd at 273; People v Jernigan, 41 AD3d 331, 332 [2007], lv denied 9 NY3d 923 [2007]; People v Major, 251 AD2d 999, 999-1000 [1998], lv denied 92 NY2d 927 [1998]).

When the prosecution alleges "specific facts which demonstrate a distinct possibility that a criminal defendant's conduct has induced a witness' unlawful refusal to testify at...