People v. Perkins

• Decision Date: 15 March 1999
• Parties: , The PEOPLE of the State of New York, Plaintiff, v. Victor PERKINS, Defendant.
• Court: New York Supreme Court

Page 273

691 N.Y.S.2d 273

180 Misc.2d 495, The PEOPLE of the State of New York, Plaintiff, v. Victor PERKINS, Defendant.

Supreme Court, Monroe County, New York.

March 15, 1999.

Edward J. Nowak, Public Defender of Monroe County (Roger Brazill of counsel), for defendant.

Howard R. Relin, District Attorney of Monroe County (Richard Roxin of counsel), for plaintiff.

DONALD J. MARK, J.

The defendant is charged with the crimes of Robbery in the First Degree, Criminal Possession of a Weapon in the Second Degree (two counts), Criminal Possession of a Weapon in the Third Degree (two counts), and Unlawful Imprisonment in the First Degree, as the result of an alleged incident at a store on February 26, 1998, during which the defendant and an accomplice, later identified as "Ted", ¹ forcibly stole personal property from the victim, threatened her with handguns, forcibly restrained her and coerced her into inducing a drug dealer to come to the store, where as a result of threats he disclosed the location of his drugs.

The prosecutor, claiming that the victim had been intimidated into not testifying at the trial by the same accomplice of the defendant, acting on behalf of the defendant, requested a pre-trial Sirois Hearing (People v. Cotto, 92 N.Y.2d 68, 677 N.Y.S.2d 35, 699 N.E.2d 394; People v. Geraci, 85 N.Y.2d 359, 625 N.Y.S.2d 469, 649 N.E.2d 817; see Matter of Holtzman v. Hellenbrand, 92 A.D.2d 405, 415, 460 N.Y.S.2d 591) in order to introduce her Grand Jury testimony (People v. Geraci, supra ) and her out-of-court statements (People v. Cotto, supra ) at the impending trial.

The defendant objected to a Sirois Hearing being conducted pre-trial, since in all the decisions which permitted the introduction of an out-of-court statement of a witness because of a defendant's misconduct, that witness was either dead, absent from the jurisdiction or refused to testify at trial, whereas in this case the victim was within the jurisdiction and subject to a material witness proceeding. This objection was overruled, as in all of those decisions the witness balked during the trial (e.g., People v. Cotto, supra ), such hearing would avoid the interruption of the trial (see People v. Slater, 53 A.D.2d 41, 386 N.Y.S.2d 134) and one nisi prius court did conduct such a hearing (People v. Banks, 146 Misc.2d 601, 551 N.Y.S.2d 1011).

At the hearing, two police investigators testified on behalf of the People as follows:

That the defendant identified Lucky and Ted as his co-robbers and that Ted was the lookout; that the victim identified a photograph of Ted as someone in the neighborhood and a photograph of Lucky as the second robber; that she told them that an unidentified male black stated to her it would be a good idea not to testify; that she told them that Ted had informed her father it would be a good idea if she did not testify. ²

That the victim told them that Ted had advised her not to testify and mentioned in essence that Lucky was one of the robbers and was murdered anyway; that she told them that she had to live and work in the area and would not testify; that she told them their contacts were stressing her, she feared for her safety, she would not testify and she referred to Lucky's murder; that she complained that Ted had followed her vehicle in his vehicle.

That they served the victim with a subpoena for trial, at which time she cried, told them it was the same as a death warrant, referred to Lucky's death and told them Ted had spoken to her boyfriend and suggested he advise her not to testify; that they served her with a subpoena for the Sirois Hearing, at which time she told them she would not testify at the hearing, she feared for her life, Ted had been warning her not to testify, and she knew Ted to be an associate of Lucky.

At the hearing, a third police investigator testified on behalf of the defendant as follows:

That the victim admitted to him that her first narration of the robbery was not totally accurate, because the robbers were violent men, she was afraid she would be killed and the drug dealer asked her not to relate the true version of the incident.

The defendant objected to the introduction of the testimony of the two police investigators on the basis that it consisted almost entirely of hearsay. However, all of the State cases involving a Sirois Hearing have allowed police investigators to testify to the threats that convinced the intimidated witnesses to refuse to appear in court as related to them by those witnesses (People v. Cotto, supra; People v. Geraci, ³ supra; People v. Delarosa 218 A.D.2d 667, 630 N.Y.S.2d 357; People v. Tuzzio, 201 A.D.2d 595, 608 N.Y.S.2d 226, app. den. 83 N.Y.2d 877, 613 N.Y.S.2d 137, 635 N.E.2d 306; People v. Small, 177 A.D.2d 669, 576 N.Y.S.2d 595, app. den. 79 N.Y.2d 953, 583 N.Y.S.2d 207, 592 N.E.2d 815; People v. Banks, ⁴ supra; People v. Sweeper, 122 Misc.2d 386, 471 N.Y.S.2d 486). The federal cases relating to a similar proceeding are in agreement with this principle (United States v. Balano, 618 F.2d 624 (10th Cir. 1079), cert. den. 449 U.S. 840, 101 S.Ct. 118, 66 L.Ed.2d 47; United States v. Mastrangelo, 693 F.2d 269, cert. den. 467 U.S. 1204, 104 S.Ct. 2385, 81 L.Ed.2d 343).

The victim refused to respond to the subpoena served upon her for the Sirois Hearing, so a material witness order was issued; she was thereafter arrested, brought before the court and an attorney was appointed to represent her (CPL 620.20-620.40).

The investigator for the prosecutor's office who had taken the victim into custody testified as follows:

That he served the material witness order upon the victim; that she cried for 10 to 15 minutes; that she stated she could not come to court and she did not want to be the next homicide victim; and that she repeated she did not want to die.

Thus, through the hearsay testimony of the four investigators, without resort to the victim's testimony adduced at the subsequent in camera proceeding discussed infra, the People proved by clear and convincing evidence that the victim had become unavailable to testify at the trial because she had been severely intimidated (see People v. Cotto, supra, 75-76, 677 N.Y.S.2d 35, 699 N.E.2d 394 "... at a Sirois Hearing the People must prove by clear and convincing evidence that the defendant caused the witness' unavailability").

The victim, through her attorney, alleged that she was so traumatized by the threats made against her by Ted, that she would not testify in the defendant's presence, and that if she were able to testify outside of his presence, she did not want the defendant to become aware of the entire contents of her testimony. ⁵ The court attempted to resolve this dilemma by holding a hearing fashioned after People v. Darden, 34 N.Y.2d 177, 356 N.Y.S.2d 582, 313 N.E.2d 49. It was felt the court could safeguard the rights of the defendant by posing relevant questions to the victim and listening to her answers, while protecting the rights of the obviously distraught witness by excluding the defendant and his counsel.

With the consent of the prosecutor and over the objection of the defendant, the procedure outlined in People v. Darden (supra, 181) was then followed, viz, the victim was questioned by the court outside of the presence of the defendant, his counsel and the prosecutor (the latter in an excess of caution and because that decision recited "the prosecutor may be present"); the defendant's attorney submitted the written questions he desired the court to ask the victim, and those questions were so asked; a summary report of the victim's testimony describing the intimidation was presented to both parties; and the transcript of the testimony was sealed for possible appellate review.

The Court of Appeals has held that a defendant has the right to be present at any material stage of the trial, and a defendant's exclusion during a hearing to determine if a prosecution witness should be allowed to testify at trial that the defendant intimidated him was reversible error (People v. Turaine, 78 N.Y.2d 871, 573 N.Y.S.2d 64, 577 N.E.2d 55). That case can be distinguished, however, because it did not involve the situation encompassed by a Sirois Hearing. Where a witness refuses to testify at trial because of a defendant's misconduct, the defendant forfeits his rights of confrontation (People v. Geraci, supra, at 366, 625 N.Y.S.2d 469, 649 N.E.2d 817). This rule should be extended to include a situation in which the defendant's misconduct is so egregious that the witness refuses to testify at a Sirois Hearing.

This theory is...