People v. Turnquest

• Decision Date: 25 January 2012
• Citation: 938 N.Y.S.2d 749,35 Misc.3d 329,2012 N.Y. Slip Op. 22019
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Chet TURNQUEST, Defendant.
• Court: New York Supreme Court

2012 N.Y. Slip Op. 22019

35 Misc.3d 329

938 N.Y.S.2d 749

The PEOPLE of the State of New York, Plaintiff,

v.Chet TURNQUEST, Defendant.

Supreme Court, Queens County, New York.

Jan. 25, 2012.

Orlando Balcacer, Esq., for defendant.

Richard A. Brown, District Attorney, County of Queens (Scott Kessler and Joyce Smith, of Counsel) for plaintiff.

JOSEPH A. ZAYAS, J.

Defendant was arrested on November 10, 2010, and charged with various domestic violence offenses, arising from the People's claims that defendant repeatedly struck his wife, Emutheul Turnquest, and pushed her out of a moving vehicle, causing serious injuries. Defendant was later indicted and charged with Attempted Murder in the Second Degree (PL § 125.25[1] ), Assault in the First and Second Degrees (PL § 120.10[3]; PL § 120.05[1] ) and Reckless Endangerment in the First Degree (PL § 120.25).

On August 9, 2011, the People moved for an order granting a Sirois hearing ( see People v. Geraci, 85 N.Y.2d 359, 625 N.Y.S.2d 469, 649 N.E.2d 817 [1995]; In the Matter of Holtzman v. Hellenbrand, 92 A.D.2d 405, 460 N.Y.S.2d 591 [2nd Dept. 1983] ), arguing that defendant's misconduct induced the complainant, Ms. Turnquest, to refuse to testify against him. Because of this alleged misconduct, the People contend that defendant effectively forfeited his confrontation rights. As a result, the People seek to introduce into evidence on their direct case several out-of-court statements made by Ms. Turnquest to a civilian witness and various police and medical personnel, as well as personnel from the District Attorney's Office. Defendant opposes the motion for a Sirois hearing, arguing that the complainant was not “unavailable” because she is in fact available and willing to come to court to testify in the trial of this matter. In support of his claim, defendant submits a sworn affidavit from Ms. Turnquest indicating that in fact she wishes to testify at defendant's trial. On November 9, 2011, this Court granted the People's motion for a Sirois hearing, which was conducted on November 21, 2011.

Given the complainant's sworn affidavit and the People's claims (including the People's additional claim that the complainant recanted her initial account of the assault), the People's motion requires the Court to determine, inter alia, whether a witness may be deemed “unavailable” for Sirois purposes when the witness is indeed physically available and intent upon testifying at defendant's trial, albeit to a version of events which completely differs from the version she told to numerous law enforcement officers and medical personnel soon after the alleged crimes.

Because the Court finds that the physically available complainant is indeed “unavailable” for the purposes of a Sirois forfeiture of confrontation rights, and because the Court otherwise finds that the People have met their burden of showing by clear and convincing evidence that defendant's misconduct caused the unavailability of the complainant—i.e., the false recantation—the Court now grants the People's motion to introduce into evidence on their direct case various out-of-court statements made by Ms. Turnquest.¹

The Sirois Hearing

The People's sole witness at the Sirois hearing was Assistant District Attorney (ADA) Joyce Smith—the ADA initially assigned to this case on November 11, 2010.

ADA Smith testified that she first met with Ms. Emutheul (“Olive”) Turnquest, the complainant in this case, on November 21, 2010, approximately 15 days after the alleged assault occurred. ADA Smith testified that at the time of their first meeting, Ms. Turnquest was wearing a cast on her left hand and appeared to be limping and “still hurting” as a result of the alleged assault. ADA Smith testified that Ms. Turnquest, who had been separated from defendant “for some time,” reported that on November 6, 2010, the defendant appeared at her place of employment and accused her, as he had on prior occasions, of having a sexual relationship with his brother. Ms. Turnquest told ADA Smith that defendant, who smelled of alcohol, pushed her against a wall, took her purse, knocked her glasses off of her face and called her a “slut” in front of her co-workers. Although Ms. Turnquest was afraid to leave with defendant, defendant insisted that she leave with him. Ms. Turnquest eventually acquiesced and they left together.

ADA Smith further testified that Ms. Turnquest reported that during the drive to her home, as she was seated in the front passenger seat and defendant was driving, defendant began punching her in the face, pressing his body against her, and that at one point he grabbed her hand and pulled her finger backwards until the finger broke. While still driving, defendant opened the front passenger door and warned her that if she did not jump from the moving automobile, he would push her. Eventually, defendant did push Ms. Turnquest out of the front passenger side door. Ms. Turnquest told ADA Smith that she was able to see the vehicle's speedometer and that the vehicle was traveling between 40 and 45 miles per hour when the defendant pushed her out.

Ms. Turnquest told ADA Smith that after defendant pushed her from the vehicle, she was able to flag down a passerby, who called 911 for her. Police and an ambulance arrived soon thereafter and took Ms. Turnquest to North Shore Long Island Jewish Medical Center. ADA Smith testified that Ms. Turnquest signed a supporting deposition, swearing to the truth of the felony complaint, on November 11, 2010.²

The Court has examined complainant's medical records from Long Island Jewish Medical Center, which were received in evidence. Although voluminous, one document, entitled “Emergency Department,” contains a handwritten narrative which reads, in pertinent part, as follows: Assault and thrown from moving vehicle 56 y/o female ... assault in car by husband. Pt was in an argument w/ spouse and he punched her several times and threw her from a moving car @ 40 mph.

A second document, entitled “Social Worker Evaluation Adult,” reads, in pertinent part, as follows: Pt was assaulted, reported this to police on the scene. Pt present w/ difficulty speaking due to injuries to jaw and multiple bodily injuries. Pt was ... in severe pain upon initial assessment. Pt admitted she was beaten in the car by her spouse. Pt would not discuss details, stated she informed police and RN upon admission.

Seven photographs of Ms. Turnquest were also received in evidence. The photographs, which reflect Ms. Turnquest's appearance when she was brought to the hospital, demonstrate that Ms. Turnquest's eyes were bruised and swollen shut, and that Ms. Turnquest's face was bloodied and had abrasions. ADA Smith testified that she reviewed a Domestic Incident Report, a Complaint Form, an arrest report and various other documents prepared by Police Officer Ghani, who rode in the ambulance with Ms. Turnquest, and Detective Justin Hughes, who was the detective later assigned to the case. ADA Smith testified that the account of the incident reflected in the various police reports was consistent with the account that Ms. Turnquest gave ADA Smith in her office on November 21, 2010. ADA Smith further testified that defendant made a statement to Detective Hughes at the time of his arrest, in which defendant stated, “I want you to know I never hit my wife before. It was the goddamn Scotch.” ADA Smith testified further that during defendant's arraignment in Criminal Court on November 10, 2010, and in Supreme Court on March 23, 2011, the Court issued an order of protection, directing defendant to stay away from Ms. Turnquest and to have no contact with her directly, electronically, telephonically, or through third parties. ADA Smith testified that on the occasion of their first meeting, Ms. Turnquest was fully cooperative with the prosecution of the case. ADA Smith further testified that she spoke with Ms. Turnquest again, by telephone, several days after their initial meeting, and that Ms. Turnquest informed ADA Smith that defendant had been released from jail ³ and that he appeared in front of her home twice, which “caused her to be afraid.” When defendant appeared in front of her home, he repeatedly asked her to get into his vehicle so that he could “talk” to her. ADA Smith testified that she advised Ms. Turnquest to immediately call the police and tell them what had occurred, but Ms. Turnquest stated that she was afraid of what the defendant might do if she were to call the police.

ADA Smith subsequently subpoenaed defendant's phone records, which revealed that nine telephone calls were made from defendant's telephone to Ms. Turnquest's telephone from November 28 to November 29, 2010. ADA Smith also subpoenaed additional phone records of defendant which revealed that, despite the extant orders of protection, 348 phone calls were made from defendant's telephone number to Ms. Turnquest's telephone number between November 28, 2010 and March 7, 2011. Although ADA Smith admitted that she could not ascertain how many of these calls, if any, resulted in actual conversation between the parties, the subpoenaed records indicate that at least 62 of the aforementioned calls lasted over two minutes in duration and numerous other calls lasted for substantial periods of time ( e.g., a 27–minute call on December 26, 2010; a 22–minute call on December 27, 2010; a 17–minute call and a 30–minute call on January 22, 2011; and a 14–minute call on February 24, 2011). ADA Smith further testified that around the middle of December 2010, when ADA Smith began to try to arrange for Ms. Turnquest to testify in the Grand Jury—that is, after defendant allegedly showed up twice at Ms. Turnquest's home and at a time when the subpoenaed records indicate that at least 45 calls had already been made from defendant's telephone number to Ms. Turnquest's telephone number—Ms. Turnquest stopped returning ADA Smith's telephone calls. Ms. Turnquest also failed to...