People v. Hok Ming Chan

• Decision Date: 10 April 1997
• Citation: 656 N.Y.S.2d 22,230 A.D.2d 165
• Parties: The PEOPLE of the State of New York, Respondent, v. HOK MING CHAN, Defendant-Appellant. The PEOPLE of the State of New York, Respondent, v. MING LI, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 22

656 N.Y.S.2d 22

230 A.D.2d 165

The PEOPLE of the State of New York, Respondent, v. HOK MING CHAN, Defendant-Appellant.

The PEOPLE of the State of New York, Respondent, v. MING LI, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

April 10, 1997.

Virginia A. LoPreto, for defendant-appellant Hok Ming Chan, and pro se.

Elan Gerstmann, of counsel (Edward S. Panzer, attorney) for defendant-appellant Ming Li.

Morrie I. Kleinbart, of counsel (Mark Dwyer on the brief, Robert M. Morgenthau, attorney) for respondent.

Before MURPHY, P.J., and SULLIVAN, ROSENBERGER, RUBIN and NARDELLI, JJ.

SULLIVAN, Justice.

Since defendants' right to be present at the trial of this indictment was not violated by their exclusion from the jury room discussion concerning a partial closure of the courtroom during a portion of the complainant's hearing testimony and the resultant closure order was, in the circumstances, an appropriate exercise of discretion, we, unlike our dissenting colleagues, see no need for a remand and new suppression hearing. Inasmuch as the other issues raised by defendants lack merit, we affirm the conviction.

To put the issue in proper perspective, a brief summary of the nature of the prosecution is in order. In the fall of 1990, Fang Kin Wah, residing in Foo Chow Province, China, agreed to pay $25,500 to a Mr. Zhang, whom he met in Bangkok, to smuggle him into the United States. The necessary arrangements were made and Fang arrived in New York City, joining his wife as an employee at a restaurant owned by his wife's brother and located at 92 Third Avenue in Manhattan. In October 1990, a group of men, including one Mei Zheng and the defendant-appellant Chan, came to the restaurant and demanded the money Fang had promised to pay. Fang borrowed $5,500 from his brother and paid it to the group. Fang was subsequently threatened on a number of occasions if he did not pay the balance.

On December 31, 1990, at about 10:30 p.m., Mei Zheng and defendants Chan and Li appeared at the restaurant and dragged Fang outside, turning him over to two other Asian men he had never seen before. One of the men gave Fang's wife a beeper number which she was to call. With Mei Zheng driving, Fang, accompanied by the two other men, was driven to Delancey Street. There, the two other men left and were replaced by defendants Li and Chan. Fang, accompanied by his three captors, was then driven to a second floor apartment at 2327 Arthur Avenue in the Bronx, where Zhang, accompanied at one point by ten other Asian men, demanded the money owed. Fang explained that he was in the process of obtaining a bank loan.

After Zhang left, never to be seen again, defendants Li and Chan and Zheng began beating Fang, one with a gun, another with a hammer, and the other with his fists. The captors called Fang's wife at the restaurant with a $30,000 ransom demand. The beatings resumed after the telephone call. Eventually, the kidnapping was reported to the police, who, using the telephone number Fang's captors had provided in response to a call to the beeper number they had given Fang's wife, were able to trace Fang and his captors to the Arthur Avenue address. Fang was rescued and the 24 Asians found in the building were removed therefrom and detained.

From photographs taken of the detainees, Fang was able to recognize 13 of these individuals as having been in the apartment. Eventually, in a corporeal identification procedure, he picked out the same 13 individuals he had identified in the photographic procedure, including defendants Chan and Li and Zheng. These three and three others were charged in the kidnapping. Defendants Li and Chan and Zheng, all of whom were convicted, were tried together with one Zhan, who was acquitted. As to the two others, one pleaded guilty to attempted kidnapping in the second degree and the charges against the sixth defendant were dismissed on the People's motion.

Returning to the courtroom after a luncheon recess declared during his cross-examination at the suppression hearing, Fang saw a group of Chinese men standing outside in the hallway. He became quite upset and agitated. As a result, the trial judge, prosecutor, three defense attorneys, Fang and the interpreter convened in the jury room, where Fang immediately blurted out, "They want to kill me". Attempting to calm Fang, the trial judge told him that he didn't "know whether these people are here to try to intimidate [him] or not, but ... if there is any evidence whatsoever that these people who happen to be Oriental ... they will leave the courtroom when I go back out there." He then asked Fang if he had "seen these people in the courtroom?"

The prosecutor interjected that he had not expected such a reaction, but that "when he brought Mr. Fang out of the courtroom, all these people were standing outside the courtroom and staring at Mr. Fang as he walked through, and immediately got him out of the area, and that's when he started this." It was at that point, the prosecutor confirmed in response to the court's question, that Fang became "emotionally upset." After the court assured Fang that no one present in the jury room was responsible for putting the men in the hallway, counsel for Zheng and Li stated that he had not heard that anyone said anything to Mr. Fang in the hallway. After the prosecutor noted that "[a]ctions spoke louder than words outside the courtroom", counsel repeated that nothing he had heard justified Fang's reaction and questioned the genuineness of "this purported reaction".

When the trial judge commented, "Maybe I'll try and get it out of him", Fang responded, "Why let so many people come in? Why so many come in. Before nobody." When the judge asked Fang whether he knew "these people," Fang replied, "All Chinese guys. Dangerous men, Chinese men, dangerous." The judge inquired as to whether "they had something to do with what you feel happened to you" and Fang replied, "Yes, exactly." In response to the court's further inquiry, Fang confirmed that he believed that the Chinese men outside the courtroom were part of the group that had kidnapped him.

When asked by Zhan's counsel whether he recognized "some of the people from that night," Fang replied that he did not. The court then asked Fang what he meant when he described the men as dangerous. Fang replied that the men were together outside the courtroom and that they had a "direct relationship", which he characterized as a group relationship, with the men on trial.

The trial judge, at that point, noted for the record that Fang appeared to be crying and was "extremely upset". Counsel for Zheng and Li described Fang's reaction as "hyperventilation". When the judge suggested that he might exclude the men from the courtroom, Fang stated, "I'm going to identify them. I'm going to sue them. I'm going to die. I don't wish anybody to go through what I did." The judge offered to exclude the men. Fang responded, "The threat is already there."

When Chan's attorney asked that the proceedings continue outside the presence of Fang since any further discussion would likely upset him even more, the judge asked Fang to leave, assuring him that the court officers would protect him. Before leaving, Fang asked, "Who asked them to come in the courtroom.... They are sending some people to come to the court to kill me. They want to kill me and my family." When the judge explained that the law required the courtroom to be open to everyone, Fang responded, "This is more threatening than just a kidnapping. My whole family. I'm worried about my family. Who is going to believe in this U.S. law?" Just before Fang was dragged from the jury room, he concluded by saying, "After I testify, I'll be dead. They will make sure I die".

A lengthy colloquy followed in which counsel for Zheng and Li, noting that the men gathered in the hallway outside the courtroom may merely have been friends and relatives of the defendants, repeated his view that there was no basis for an exclusion order. Chan's attorney asserted that on his return to the courtroom after lunch he had observed a number of Chinese men who may have been related to the defendants but had seen nothing untoward that would have provoked Fang's reaction. The prosecutor, noting that he himself had seen Fang's face turn color when he first observed the men outside the courtroom, asked the court to assess the validity of Fang's fear on the basis of its own observations.

The court concluded that Fang was genuinely fearful that someone was going to kill him and, with the observation that no one would own up to making threats, rejected a suggestion by Zhan's counsel that it inquire of the men. Counsel for Zheng and Li then announced that he recognized some of the men outside the courtroom as friends and relatives of Zheng. The court finally determined that it would exclude the men from the courtroom for the remainder of Fang's hearing testimony because "it would be prejudicial to the People at this moment, when we are at least a third of the way through [his] testimony to have him capitulate because of fear of people, some of the people who are seated in the courtroom. Very candidly I'm not sure he is going to testify at all any more if I throw everybody out of the courtroom." Before Fang resumed his testimony, he stated his promise to write to the federal authorities about the threat he had received that day, adding that, if he were to die after leaving the courtroom, he "can say they did it."

New York confers upon a defendant at the trial of a criminal charge a right to be present broader than that guaranteed by the Federal constitution. (People v. Sprowal, 84 N.Y.2d 113, 117, 615 N.Y.S.2d 328, 638 N.E.2d 973.) Under the latter, a defendant has a right to be present at any stage where evidence of the charges is being presented (id. at 116-117, 615 N.Y.S.2d 328, 638 N.E.2d 973, citing Kentucky v. Stincer, 482 U.S. 730, 739, 107...