People v. Mahabub
| Decision Date | 30 November 2012 |
| Citation | 956 N.Y.S.2d 811,2012 N.Y. Slip Op. 22357,38 Misc.3d 554 |
| Parties | The PEOPLE of the State of New York v. Hassan MAHABUB, Defendant. |
| Court | New York Criminal Court |
OPINION TEXT STARTS HERE
Mahendra Ramgopal, Attorney for defendant.
ADA Deanna Paul, Attorney for the People.
On October 5, 2012, the Court denied the People's application for forfeiture of the defendant's constitutional right to confrontation and admission of the complainant's prior statements to law enforcement against him at trial. After a Sirois hearing 1 held on August 23, 2012 and August 30, 2012, the Court found that the People failed to show by “clear and convincing” evidence that the defendant procured the complainant's “unavailability” through misconduct. The following decision explains the basis for the Court's ruling.
Police Officer Michael Torres testified that at about 2 p.m. on July 23, 2011, he received a radio run of an assault in progress at 84–70 129th Street in Queens County. When he responded, the defendant and the complainant, Ara Ismat, were both present. Ismat had a bloody lip and blood on her cheek. She told Officer Torres that she had gotten into a verbal altercation with the defendant, her husband, which escalated to the point where he smacked her in the face. Officer Torres asked Ismat to fill out a Domestic Incident Report [“DIR”]. Ismat wrote a statement under the Supporting Deposition attached to the DIR and signed it in the officer's presence 2. Officer Torres subsequently drafted a misdemeanor complaint, which he provided to Ismat. After reading it, she signed a supporting deposition 3 for the misdemeanor complaint, again in his presence. Officer Torres testified that when he interacted with Ismat, she was cooperative with the prosecution.
Assistant District Attorney [“ADA”] Deanna Paul testified that on October 26, 2011, she and ADA Gloria Lam (aka Gloria Pellegrino) 4 met with Ismat in the Family Justice Center at the Queens District Attorney's Office. During that meeting, Ismat told ADA Paul that she did not want to testify against the defendant and that she wanted to drop the charges against him. Ismat stated that she believed the incident “was an accident” and “that [the defendant] hadn't intended to hurt her.” When ADA Paul confronted Ismat with the DIR, the supporting deposition for the misdemeanor complaint, and photographs of Ismat's alleged injuries, Ismat did not respond. ADA Paul never asked Ismat whether the defendant had forced or intimidated her not to testify. ADA Paul was aware that on September 28, 2011, Ismat had spoken to ADA Pellegrino and told her that she was financially dependent upon the defendant and that she had “changed her mind” and wanted a limited order of protection against him 5.
At the October 26, 2011 meeting, Ismat gave ADA Paul her cell phone number, which matched the phone number she previously provided in the DIR. After that date, however, Ismat failed to respond to ADA's Paul's numerous attempts to telephone and subpoena her. ADA Paul next obtained the defendant's cell phone number from the arrest and Criminal Justice Agency reports on file 6. She then subpoenaed the defendant's cell phone records, including both incoming and outgoing calls for the billing period between June 23, 2011 and April 25, 2012 7. ADA Paul testified that the records showed that between July 24, [38 Misc.3d 557]2011 and September 13, 2011, approximately 50 calls were made from the defendant's cell phone to Ismat's cell phone. These calls were approximately one (1) minute in duration. Between September 14, 2011 and September 28, 2011, many additional calls were made from the defendant's cell phone to Ismat's cell phone. The duration of these calls was longer, in some instances between five (5) and 10 minutes. Between September 28, 2011 and the October 26, 2011 meeting between Ismat and ADA Paul, approximately 40 calls were made from the defendant's cell phone to Ismat's cell phone. In total, from July 24, 2011 to October 26, 2011, approximately 120 calls were made from the defendant's cell phone to Ismat's cell phone, approximately 30 of which lasted longer than two (2) minutes 8.
ADA Paul acknowledged that none of the phone calls were recorded and that she did not know the contents of any of the phone calls, or even whether the defendant might have called Ismat's cell phone to speak to his step-son or daughter, both of whom live with Ismat. ADA Paul also admitted that she had never asked Ismat whether the defendant was calling her.
On March 15, 2012, ADA Paul again met with Ismat, who was accompanied by an attorney. At that meeting Ismat stated that she was concerned that the defendant would be deported to Bangladesh if the criminal case continued and that the case needed to be dropped because the defendant could not accept any plea offer. She was “absolutely not” cooperative with the prosecution at that time.
ADA Gloria Pellegrino testified that she spoke with Ismat between July 24, 2011 and September 13, 2011. ADA Pellegrino asked Ismat about the alleged incident as well as for background information. Ismat informed ADA Pellegrino that she had been in a relationship with the defendant for five (5) years and that she had one (1) child in common with him in addition to a child from a previous relationship. Ismat also told ADA Pellegrino that she worked part-time as a home health aide. When ADA Pellegrino asked Ismat about the history of abuse between them, Ismat said that the defendant had hit her before but she “didn't want to go back and speak about the past incidents.” After ADA Pellegrino explained the difference between a full and limited order of protection, Ismat stated that she wanted a full order of protection against the defendant but that she “possibly ... could go down to a limited order as the case progressed” and that she had to “talk to [ADA Pellegrino] more about it.” Ismat was “very cooperative” with the prosecution during this time period.
When ADA Pellegrino spoke with Ismat again on September 13, 2011, Ismat was “pretty adamant” that she wanted a “full, complete” order of protection because she “no longer want[ed] anything to do with the defendant.” Thereafter, on September 28, 2011, Ismat informed ADA Pellegrino that she now wanted a limited order of protection because the defendant was “talking to her” and she was “concerned about his job.” On October 26, 2011, the case was calendared for a hearing and Ismat came to the District Attorney's Office. Ismat then stated for the first time that the defendant had not punched her, but had only hit her, and that she believed it was an accident. Ismat never told ADA Pellegrino that she was afraid of the defendant or that he was preventing her from cooperating with the prosecution.
Once the People demonstrate a “distinct possibility” that the defendant's misconduct has procured the “unavailability” of a witness, they are entitled to a hearing to determine whether the defendant has forfeited his constitutional right to confrontation by wrongdoing ( see People v. Cotto, 92 N.Y.2d 68, 72, 677 N.Y.S.2d 35, 699 N.E.2d 394 [1998];Matter of Holtzman v. Hellenbrand, 92 A.D.2d 405, 415, 460 N.Y.S.2d 591 [2d Dept.1982] ). Where the People prove, by “clear and convincing” evidence, that the defendant engaged in violence, threats or chicanery which caused a witness's unavailability, “the defendant may not assert either the constitutional right of confrontation or the evidentiary rules against the admission of hearsay in order to prevent the admission of the witness's out-of-court declarations” ( People v. Geraci, 85 N.Y.2d 359, 365–366, 625 N.Y.S.2d 469, 649 N.E.2d 817 [1995] [internal citations omitted]; Cotto, 92 N.Y.2d at 75, 677 N.Y.S.2d 35, 699 N.E.2d 394;People v. Johnson, 93 N.Y.2d 254, 258, 689 N.Y.S.2d 689, 711 N.E.2d 967 [1999] ). “Unavailability” encompasses more than mere physical absence of a witness; a witness is unavailable when she refuses to testify against the defendant ( see Cotto, 92 N.Y.2d at 73, 677 N.Y.S.2d 35, 699 N.E.2d 394;Geraci, 85 N.Y.2d at 364, 625 N.Y.S.2d 469, 649 N.E.2d 817) or when she recants prior statements inculpating the defendant ( see People v. Congilaro, 159 A.D.2d 964, 965, 552 N.Y.S.2d 775 [4th Dept.1990]; People v. Turnquest, 35 Misc.3d 329, 339, 938 N.Y.S.2d 749 [Sup. Ct., Queens County 2012] ). Because a defendant engaging in witness tampering will often resort to subterfuge, the People may use circumstantial evidence to establish that the witness's unavailability was procured by the defendant's misconduct ( see Cotto, 92 N.Y.2d at 76, 677 N.Y.S.2d 35, 699 N.E.2d 394). Forfeiture of the right to confrontation under these circumstances is justified by the maxim that the law will not “allow a person to take advantage of his own wrong” and by the sound public policy of protecting the integrity of the adversary process by reducing the incentive to tamper with witnesses ( see Geraci, 85 N.Y.2d at 366–368, 625 N.Y.S.2d 469, 649 N.E.2d 817 [internal citations omitted] ). Where a defendant has forfeited his right to confrontation by misconduct, any sufficiently reliable prior statement of the witness is admissible as direct evidence against the defendant ( see Cotto, 92 N.Y.2d at 77–78, 677 N.Y.S.2d 35, 699 N.E.2d 394).
In addition to violence, threats and chicanery, misconduct by the defendant which procures a witness's unavailability includes wrongfully using his relationship with the witness to pressure her not to testify ( see People v. Jernigan, 41 A.D.3d 331, 838 N.Y.S.2d 81 [1st Dept.2007] ). For example, a defendant with a history of violence who brutally and repeatedly slashed his former girlfriend with a razor subsequently caused her unavailability as a witness by leaving messages on her answering machine urging her not to send him to prison and imploring her not to testify ( id.). Under these circumstances, the fact that the victim visited the...
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...possibility that his calls caused her unavailability ( People v. Cotto, 92 N.Y.2d 68, 677 N.Y.S.2d 35, 699 N.E.2d 394;People v. Mahabub, 38 Misc.3d 554, 956 N.Y.S.2d 811), a hearing on the issue was held. It was established at the hearing that the defendant called the complaining witness ov......