People v. Moye
| Decision Date | 31 March 2016 |
| Docket Number | No. 2138/2014.,2138/2014. |
| Citation | 38 N.Y.S.3d 832 (Table) |
| Parties | The PEOPLE of the State of New York v. Supreme MOYE, Defendant. |
| Court | New York Supreme Court |
, J.
A hearing was held on September 28, 2015, and continued on Nov, 10, 2015, and December 7, 2015, to determine whether the complaining witness is unavailable to testify at trial due to the defendant's misconduct, warranting the admission of certain out-of-court statements made by her. The following constitutes the findings of fact and conclusions of law of the Court.
Investigator Amy Lowe, of the New York City Department of Correction Legal Division, was a custodian of inmates' records and recordings. She explained that in order for an inmate to make a phone call, he has to put in his “book and case” number, which is his inmate identification number, and his PIN number, which he chooses himself. No two inmates have the same “book and case” number.
Except calls to clergy, personal physicians, and lawyers, all inmate phone calls are recorded, and notice of this is provided to the inmates in three different ways. All inmates are provided a handbook upon admission to the facility, which includes a notice that calls are being monitored and recorded. In addition, there are postings where inmate phones are located in each housing area that calls are monitored and recorded. Lastly, when an inmate picks up a receiver, puts in his “book and case” number, PIN number, and the number he wishes to call, a recording comes on the telephone informing the inmate that the call is being monitored and recorded.
Investigator Lowe testified that the Department of Correction, as part of its regular course of business, maintained records of inmates' calls, by “book and case” number, the inmates' NYSID numbers, and the date and time of the call. The defendant's telephone call list for the dates of August 7, 2014 to August 18, 2014 was received into evidence at the hearing. In addition, a compact disc (hereinafter “CD”) of the defendant's phone calls during the period of August 7 to August 21, 2014 was received into evidence at the hearing, as was a separate CD of four of the phone calls on the first CD. Investigator Lowe also, as custodian of the records, verified that a list of calls made by the defendant from September 15, 2014 to February 23, 2015, was kept by the Department of Correction in the regular course of business. She also verified a phone number search log for phone number (xxx) xxx-xxxx was made in response to a subpoena by the Queens District Attorney's Office, which reflected who within the facility had made calls to that outside number. A CD of the phone calls made to that number, as well as separate CDs of some of the calls, were also received into evidence.
TARA COUGHLIN, an Assistant District Attorney in the Domestic Violence Bureau of the Queens County District Attorney's Office, was contacted on August 5, 2014, by Detective Schmidt of the 113 Precinct, who told her she had arrested the defendant, Supreme Moye, in connection with an incident that had occurred on April 21, 2014; but that when the defendant was arrested, the complainant, B.S.1 , was with the defendant. The detective's concern stemmed from the seriousness of the stabbing/slashing incident and the fact that the complainant was 15 years old. The defendant was 20 years old. On April 21, the date of the incident, Det. Schmidt had responded to the location in the area of Merrick Boulevard, where she saw B.S. in an ambulance. B.S. told the detective that the defendant, her boyfriend, had stabbed her in the face and slashed her neck.Ms. Coughlin asked the detective to bring B.S. into the office; both B.S. and her mother, C.S., arrived that afternoon. In her interview with ADA Coughlin on August 5, B.S. told her that on the day of the incident in April, she had felt what was like a punch to the face by the defendant, but then saw that she was bleeding. Her neck was also sliced. She ran, called her mother, and went to a nearby fire department.
B.S. told Ms. Coughlin that although she knew the defendant would have to be held accountable for what he did, she had forgiven him, had been with him during the summer, and she and he thought two years in jail was sufficient. Ms. Coughlin informed B.S. that she was not considering a sentence that low, and that B.S. would have to obey a subpoena and come to court, which B.S. said she understood, and that she would testify truthfully. After that, ADA Coughlin recorded an interview with B.S. on videotape that same day. Ms. Coughlin noted that B.S. had a scar on her cheek and a slash mark on her neck. As she was leaving, B.S. mentioned that the defendant had also stabbed her in the back; when she lifted up her shirt, Ms. Coughlin was able to see both a stab mark on the top of her arm, as well as in the middle of her back.
ADA Coughlin also interviewed C.S. that day, who told her that on the day of the incident she had gotten a call at work at around 2:30 p.m. from her daughter, who was hysterical and hard to understand, and kept saying “Preme” and “buck fifty.” “Preme” is what her daughter called the defendant, short for Supreme. Although B.S. couldn't say where she was, C.S. was told by someone at the scene that B.S. was taken to North Shore Hospital.
ADA Coughlin subpoenaed the hospital records, and a certified copy was introduced into evidence. C.S., B.S.'s mother, also gave ADA Coughlin posts from her daughter's Facebook account starting on the date of the incident, April 21, 2014, when she returned home from the hospital and until April 25, 2014. C.S. had looked for messages from “Preme Low”, the defendant. His photograph was on the posts under that name. C.S. also provided ADA Coughlin by email with a “screen shot”2 of B.S.'s phone from the day of the incident, April 21, 2014. According to C.S., B.S. showed her the message on her phone of which C.S. took a “screen shot”, that is, a photograph. B.S.'s phone number was (xxx) xxx-xxxx3 . Photographs of the complainant's injuries, taken by her mother on April 21, 2014 and sent to ADA Coughlin, were also received into evidence.
The minutes of defendant's arraignment in Criminal Court on August 6, 2014, were also introduced into evidence, specifically the instruction from the judge to the defendant ordering him, as part of the issuance of the order of protection, not to call B.S. from jail or to have any contact with her. A certified copy of the order of protection issued on August 6, 2014 was also received into evidence.
On August 25, 2014, ADA Coughlin alerted B.S. by phone that she would be needing her to testify in the grand jury that week. On August 27, Coughlin called back and asked B.S. what day was good for her; B.S. said Friday was. Coughlin told B.S. she would send a taxi to pick her up and to bring her to the District Attorney's Office, to which B.S. agreed. A subpoena was also mailed to the complainant. Once again the next day, ADA Coughlin reconfirmed with B.S. the appointment at 9:00 a.m. for the following day. On August 29, a little after 9:00 a.m., the cab company called ADA Coughlin to say that no one was picking up the phone they were given to call. Coughlin called B.S. on her number, but the phone was immediately hung up. Coughlin then called B.S.'s mother, who said that B.S. had “blown up” the day before, declaring she wasn't going to court, and that she could be brought to jail, but they couldn't keep her forever. C.S. did not know where B.S. was on August 29th.
On Sunday, August 31, ADA Coughlin called B.S. and reached her. B.S. said there had been a misunderstanding and that she would come in to testify. Coughlin told B.S. that she would send another taxi for her on September 4, and that ADA Quinn would be in touch with her. Det. Helgeson was sent on September 3 to personally serve B.S. with a subpoena; although the detective did not find her, the subpoena was left at her home, and she was spoken to on the phone, and told of the subpoena. B.S. assured the detective she would be in court.
At noon on Sept. 4th, B.S. again did not appear for the taxicab, did not pick up her phone, and did not respond to messages left. On September 7th, ADA Coughlin spoke to B.S.'s mother, C.S., again, asking for her assistance in locating her daughter. Although C.S. did not know where B.S. was, she promised to help. B.S. was not found and did not respond to messages. The grand jury voted on the case without testimony from B.S.
ADA Coughlin then ordered, by subpoena, phone calls from the defendant's account from Riker's Island, for the dates from the beginning of August to August 24, 2014. Four of the calls she listened to she had recorded on a separate CD. One, from August 7, 2014, was a call from the defendant to an unidentified woman. Two calls on August 9, 2014, were made directly to B.S., and the fourth call, made on August 10, 2014, was made by the defendant to an unidentified person. ADA Coughlin recognized the defendant's voice from his Central Booking interview and from his “book and case” number, and from the fact that he was discussing the case and B.S.. Coughlin also recognized B.S.'s voice on two of the calls, based on her interview of her and her phone conversations with her. She also recognized the number called by the defendant as B.S.'s phone number.
In the August 7th call, the day after his arraignment, the defendant is informed by an unidentified woman that “B.S. is acting crazy”; the defendant tells her to “tell Pookie to speak to B.S..” The first call on August 9th with B.S. has B.S. saying to the defendant “you're making this hard on me if I have to go back and forth to Court”, to which the defendant said B.S. says “get low and don't go”, and the defendant replied “get all the way low.” In the second call on August 9th, the defendant says to B.S. ...
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In re R.D., NN 02246–7/17
...officer that messages were exchanged between accounts set up by defendant and the victims); ( People v. Moye, 51 Misc.3d 1216[A], 38 N.Y.S.3d 832 ) (instant messages authenticated by witness who identified defendant's screen name and picture, and contents of messages indicated that sender h......