People v. Jernigan

• Decision Date: 28 June 2007
• Docket Number: 1448.
• Citation: 838 N.Y.S.2d 81,41 A.D.3d 331,2007 NY Slip Op 05629
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JERMAINE JERNIGAN, Appellant.
• Court: New York Supreme Court — Appellate Division

41 A.D.3d 331

838 N.Y.S.2d 81

2007 NY Slip Op 05629

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JERMAINE JERNIGAN, Appellant.

1448.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided June 28, 2007.

Judgment, Supreme Court, New York County (Charles J. Tejada, J.), rendered October 28, 2004, convicting defendant, after a jury trial, of assault in the first degree and tampering with a witness in the fourth degree, and sentencing him to concurrent terms of 15 years and 1 year, respectively, unanimously affirmed.

Defendant was convicted of brutally and repeatedly slashing his former girlfriend with a razor. When the victim failed to appear for trial, the court conducted a Sirois hearing (see Matter of Holtzman v Hellenbrand, 92 AD2d 405 [1983]), where the People proved, by clear and convincing evidence, that defendant's misconduct procured her unavailability for trial (see People v Geraci, 85 NY2d 359 [1995]). Accordingly, the court properly allowed the People to introduce her grand jury testimony at trial.

"[W]hen defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims, the Sixth Amendment does not require courts to acquiesce.... That is, one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation" (Davis v Washington, 547 US ___, ___, 126 S Ct 2266, 2280 [2006]). There was extensive direct and circumstantial evidence of defendant's wrongdoing, including phone messages that defendant left on the victim's answering machine in which he implored her not to testify against him, and evidence that he made an additional 59 calls to her whose content could not be determined. Contrary to defendant's argument, the People were not required to prove that he made any threats. Instead, the evidence fully supported the conclusion that defendant wrongfully made use of his relationship with the victim in order to pressure her to violate her duty to testify (see People v Major, 251 AD2d 999 [1998], lv denied 92 NY2d 927 [1998]). His intent was manifest, particularly from the recorded messages urging her not to send him to prison, especially when viewed in a backdrop of his several acts of violence going back to the 1980s. There was ample evidence of a causal relationship between defendant's misconduct and the victim's unavailability, including her conversation with a detective about her state of mind, and the lack of any other explanation for her ultimate disappearance. There was no need for expert testimony about the victim's mental state, since her relationship with defendant was fully explored at the hearing and the evidence permitted reasonable inferences on that subject. The fact she visited defendant in jail while the case was pending does not undermine the court's findings; on the contrary, this fact is consistent with defendant's obvious ability to control the victim. Finally, we find nothing in People v Maher (89 NY2d 456, 462 [1997]) that would necessarily preclude the same evidence...