Opinion
3139/2016
02-13-2018
The PEOPLE of the State of New York, Plaintiff, v. Cory ROBY, Defendant.
Brain Rodkey, Esq. for the People of the State of New York Kevin Canfield, Esq. for the defendant, Cory Roby
Brain Rodkey, Esq. for the People of the State of New York
Kevin Canfield, Esq. for the defendant, Cory Roby
Diane Kiesel, J.
The defendant, Cory Roby, is charged with assault, witness tampering and criminal contempt after allegedly stabbing the mother of his child and repeatedly violating an order of protection issued in connection with that incident. The complainant refuses to cooperate with the prosecution, for which the People blame the defendant. Consequently, they seek to introduce her out-of-court statements about the assault to prove Mr. Roby's guilt. A hearing was held pursuant to People v. Sirois , 92 AD2d 618 (1983), to determine whether Mr. Roby engaged in conduct to prevent the complainant from coming forward which would allow the People to introduce her statements at trial.
Background.
On or about July 2, 2016 at approximately 5 p.m. inside of 1512 Amsterdam Avenue in New York County, the defendant is alleged to have punched Kady G. in the face, stabbed her in the hand, arm and leg causing bleeding, swelling and a chipped tooth. When she attempted to call police, the defendant is alleged to have taken her cell phone from her. It was Mr. Roby who called the police, claiming to be the victim of an assault by Ms. G. A quick examination of the crime scene led the police to conclude otherwise.
Mr. Roby was arrested and arraigned on July 8, at which time a judge remanded him. The defendant initially indicated he would testify in the Grand Jury, waived his statutory release time pursuant to CPL 180.80 and the case was adjourned to July 26 for Grand Jury action. On that date, the defendant withdrew notice of his intention to testify and he was indicted. He was arraigned on the indictment in Supreme Court on September 1, 2016.
Although this Court has not reviewed the Grand Jury minutes (a judge in the calendar part reviewed them) Ms. G. apparently did not honor a subpoena to testify and the People obtained their indictment of Mr. Roby with other evidence. Ms. G. remains uncooperative with the prosecution and based on statements made in Court by counsel, may be living in Cleveland, Ohio. She is not expected to appear as a witness at trial.
The Law.
In all criminal prosecutions, a defendant has the right to confront the witnesses against him. U.S. Constitution, Amend. VI ; Crawford v. Washington, 541 U.S. 36 (2004). See also, People v. Cotto, 92 NY2d 68 (1998) ; People v. Geraci, 85 NY2d 359 (1995). "But when 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." Davis v. Washington, 547 U.S. 813, 833 (2006). Although defendants need not "assist the State in proving their guilt," they must "refrain from acting in ways that destroy the integrity of the criminal-trial system." Id.
Here, the People allege the defendant has worked to prevent the alleged victim from cooperating with the prosecution against him. To determine whether that is true, a Sirois hearing was held. At that hearing the People had the burden of proving, by clear and convincing evidence, that the defendant caused the witness's unavailability "through violence, threats or chicanery." Cotto, 92 NY2d at 68 ; Geraci, 85 NY2d at 359. See also, People v. Swinson, 38 Misc 3d 1220(A) (Supreme Court, New York County, 2013). If the People meet their burden, the defendant forfeits this crucial constitutional right and the prosecution may use in their case-in-chief evidence that would normally be inadmissible hearsay. People v. White, 4 AD3d 225 (1st Dept.)appeal denied, 3 NY3d 650 (2004).
Although the case law often focuses on violence, threats or intimidation when examining conduct that would result in forfeiture of one's confrontation right, other behavior may be considered. Coercion, persuasion, undue influence or pressure that results in a witness's silence may also cause a defendant to forfeit these rights. See People v. Encarnation, 87 AD3d 81 (1st Dept. 2011). A court may also consider whether the defendant and the reluctant witness have a relationship in which the defendant has engaged in a pattern of controlling or coercive behavior. People v. Byrd, 51 A.D. 3rd 267, 273–74 (1st Dept.)appeal denied, 10 NY3d 926 (2008). As noted in People v. Jernigan, 41 AD3d 331 (1st Dept., 2007), "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 to pressure her to violate her duty to testify."
To support the theory that the defendant made use of his relationship with his victim, the People may proffer evidence of the existence of domestic violence at a Sirois hearing. That may include expert testimony to assist the court in understanding the complex, often confusing dynamic of domestic violence. In Byrd, 51 AD3d at 273–74, the First Department upheld the admissibility of expert testimony on Battered Woman's Syndrome to show the extent of the emotional hold the defendant had over an uncooperative complainant. "The evidence was relevant to place defendant's actions in context to show that he had such a degree of control over Jill J. [the complainant who refused to testify] that seemingly innocuous calls or hospital visits would have a coercive effect on her." Id.
Additionally, the fact a witness exhibits or expresses reluctance to cooperate with prosecutors prior to any intimidation or threats by a defendant, "does not vitiate the court's conclusion that defendant's ‘misdeeds were a significant cause of the witness's decision not to testify.’ " People v. Evans, 66 N.Y.S 119 (1st Dept. 2018) citing People v. Smart, 23 NY3d 213, 220 (2014).
Because the actions of a defendant to prevent a witness from cooperating with the District Attorney are often surreptitious, the People may rely on circumstantial evidence to meet their burden at a Sirois hearing. See People v. Alson, 27 AD3d 311 (1st Dept.)appeal denied, 7 NY3d 751 (2006) ; People v. Turnquest, 35 Misc 3d 329, 337 n. 9 (Supreme Court, Queens County, 2012). Repeated phone calls between the defendant and the alleged victim, may be abusive and coercive enough to support a finding that the defendant has forfeited his confrontation rights. See, e.g., People v. Major, 251 AD2d 999 (4th Dept. 1998)
Upon a judicial determination that the defendant forfeited his confrontation rights, the testimony often offered at trial is from the Grand Jury, where the witness was sworn. See Evans . However, this is not the only testimony available to the People. Courts have sanctioned the use of out-of-court statements made by witnesses to police, health care professionals and representatives from the District Attorney's office. See Turnquest, 35 Misc 3d at 330.
The Sirois Hearing.
The People presented six witnesses at the three-day hearing. The defendant did not put forth a case. The witnesses who testified were P.O. Lauren Liebhauser, Shield No. 21523, of the 30th Police Precinct, a former investigator for the New York County District Attorney who participated in interviews with the complainant; Det. Wilder Sanchez, Shield No. 7641, of the 30th Precinct Detective Squad, who interviewed the complainant at the hospital after the alleged assault; New York County District Attorney's Office Investigator Donjya Bardliving who searched for the complainant after she refused to cooperate with the prosecution; P.O. Laura Mullaney, Shield No. 18673, of the 30th Precinct who arrested the defendant and spoke to the complainant shortly after the alleged attack and Kristen Slesar, a licensed clinical social worker and expert in domestic violence. The People also called P.O. Timothy Yacopino, Shield No. 5581, of the 30th Precinct who responded to a prior emergency call about a domestic abuse incident between the defendant and the complainant. All the witnesses were credible.
Additionally, the People introduced Domestic Incident Reports involving the defendant and Ms. G. prepared by police; the defendant's inmate and phone records; underlying court orders of protection issued after the stabbing incident in favor of the complainant and the complainant's voluminous medical records. The People also introduced recordings of a significant number of phone calls between the defendant and the complainant and calls between the defendant and third parties. All calls between the defendant and Ms. G. were prohibited by a court order of protection and form the basis for the charges against him of criminal contempt and witness tampering.
The Court finds the following facts: P.O. Mullaney arrested Mr. Roby on July 2, 2016, after having surveyed the bloody crime scene and spoken to the complainant. She arrived there in response to a radio run of an assault in progress. She and her partner found the defendant lying on the floor directly inside the front door "moaning, groaning, calling out." The officers quickly concluded he was faking, even though he was the party who made the 911 call; the apartment was covered in blood but Mr. Roby was without injury. Shortly after they entered, Ms. G. came towards them, held out her bloody hand, and said: "Excuse me, I believe I'm the priority. He did this to me." Fearful Ms. G. would "bleed out" Officer Mullaney had her rushed to the hospital. At some point Ms. G. told Officer Mullaney that she had wanted to call 911 but the defendant had taken her cell phone away.
At the hospital, Ms. G. said she and the defendant were on their way to a barbecue when she told him she wanted to break up and the defendant snapped. Ms. G. told the officer that Mr. Roby had punched her all over her body and stabbed her in the knee, the arm and the hand with a kitchen knife. The officer observed Ms. G. to have a swollen face and a chipped tooth. The complainant's demeanor at the hospital was described by the officer as calm, almost serene.
At least two hours later, Det. Sanchez came to the hospital where he observed similar injuries on the complainant. He testified that Ms. G. was already reluctant to speak with him. She initially denied anything had happened to her, although the detective described her as looking "scared." In short order, however, she opened up to the detective and told him, in essence, what she had already told Officer Mullaney.
Ms. G was admitted to St. Luke's Hospital. Three days after the incident, District Attorney's Office Investigator Liebhauser met with her there. They had a brief discussion about what happened, although Ms. Liebhauser said the complainant seemed "reluctant" to talk about it. The following day the investigator returned with the assistant district attorney assigned to the case to conduct a detailed interview with Ms. G. Ms. Liebhauser testified that the complainant told her the following on that day: She and Mr. Roby had been together four years and had a child in common. While they had fought in the past, those disputes had never taken a violent turn. On the date of the incident, the defendant learned she had obtained a driver's license and a passport and felt threatened that she would leave him. He struck her repeatedly, stabbed her in the hand, arm and leg and hit her head into the bathtub. The defendant heated grease in a pan in the kitchen and the two struggled over it. When she tried to call the police, he took her cell phone. After seeing how hard she was bleeding, he wrapped her hand with a t-shirt and went to a neighbor's apartment to call 911. The meeting between the assistant district attorney, the investigator and Ms. G ended cordially. The possibility of her testifying in the future was discussed, although the complainant was not given a subpoena or a date on which she would have to come to the Grand Jury or to court.
Ms. G. may have been minimizing the couple's past disputes. In recorded jailhouse phone calls with Mr. Roby, Ms. G. alludes to past physical injuries inflicted on her by him.
On July 22, 2016 the investigator went to the shelter in the Bronx where the complainant was living to serve her with a Grand Jury subpoena. Ms. G. told the investigator she would not testify. Ms. Liebhauser testified: "She stated that she felt like she had done her part, and whatever was to happen, you know, going forward with the case didn't really have anything to do with her. She had told us what she had to tell us, and she needed to do what was best for her and what was best for her daughter." Ms. G implied that she and her daughter might be moving away, but she refused to say where. The Office of the New York County District Attorney has not had contact with Ms. G. since.
The evidence at the Sirois hearing clearly showed that in the days leading up to the Grand Jury proceeding, the complainant was the target of repeated phone calls from the defendant and from others acting on his behalf. Those calls were recorded, as per standard policy on Rikers Island. There was no single "smoking gun" phone call from the defendant in which he threatened violence if Ms. G. were to testify against him. But the number of calls, coupled with subtle but certain messages not to cooperate with the District Attorney, were a steady drip, drip, drip of undue influence that washed over Ms. G. The defendant promised marriage and future sexual favors; he played on her guilt by warning that her injuries would heal, but that if convicted, he would go to jail for life; he blamed her for taking him away from their only child and he displayed an occasional hint of temper—all the while pushing her for an answer as to whether she would testify against him.
The only rational inference that may be drawn from the defendant's conduct is that he intended to prevent the complainant from testifying against him so he would not have to answer for his actions. Although Ms. G is recorded telling the defendant that she loved him and that she forgave him for what he did to her, she was circumspect when he questioned her as to whether she intended to testify. And, in fact, she never gave him a direct answer. This Court determines that the People have proven by clear and convincing evidence that Mr. Roby eventually got the answer he wanted—the answer he engineered—when she failed to answer her Grand Jury subpoena to testify against him.
The calls introduced by the People show the following: On July 16—10 days before he was indicted—the defendant called a friend named "Mookie," who was able to patch in a man named "Celine." From the contents of the three-way call, it appears they were all friends who also knew the complaining witness. Celine revealed he was on his way to visit Ms. G. "in about five minutes." The defendant told Celine to give Ms. G. a message. "Well the message is that, for her not to come in.... to the grand. And I'll use her if I need her at the trial."
The next day the defendant called Ms. G. directly at a number provided the day before by Celine. He called her by a fake name: "Jessica Brown," obviously aware he was not supposed to be phoning Ms. G. He asked her to forgive him and told her she belonged to him. "Right now I'm down....facing life.... You always did say that you was never gonna be the one to do it to me," he said. He also suggested that he would repay her in the future with a certain type of sexual activity. She cut him off. "That's done."
In that same call, the defendant asked her whether she would testify. "So you made up your mind yet?" he asked. "As far as what?" she replied. "As far as what's going on." She told him she forgave him, but she did not say whether she would testify. Before the call ended the defendant expressed hope he would be released on his next court date. This surprised Ms. G. who replied, "You'll be released?" The defendant picked up on her tone. "I don't know, will I?" he asked. Having not gotten a straight answer, the defendant called back at least four times that day. "The power of the tongue is very very very very very .... right now, I would just leave it. I would, that's what I would do," he told her.
Perhaps in the hope he could be more persuasive in person, he tried to get her to visit him in jail, but she reminded him there was an order of protection preventing it. His tone immediately became harsher. "I still advise that you come see me." She replied: "Why, why, why do you advise that?" "I'm just saying," he responded.
In a third call, shortly after the first two, the defendant said: "I asked you a question as far as what it is that you are going to do and you still haven't told me." She told him she forgave him, "shouldn't that be enough said?" He continued to insist she visit him on Rikers and she continued to resist, telling him she feared getting in trouble. He whined about the possibility of going to jail for the rest of his life and to having made sacrifices for their relationship. "I've been sacrificing forever," the complainant retorted. Then, indicating she had not made up her mind about whether to testify, she said, "Everybody asking me a lot of questions that I don't wanna tell nobody nothing. That shit is embarrassing. But anyway, I'm gonna have to sort that out." The conversation went downhill. "You know what's more embarrassing," the defendant said, "facing life. The possibility of never coming home again and then what, my daughter grows old and then she comes to see me and asks me ‘Daddy, why are you here?’ What am I supposed to tell her?" The complainant suggested he tell the truth, to which the defendant responded: "Oh, Mommy put me here?" Ms. G. said, "I put you there? .... Tell yourself that all you want.... Your actions put you there."
In a phone call less than 10 minutes later, the defendant changed tactics. He professed his love for her and their daughter. Two days later, which still was prior to the defendant's indictment, he called her again. "What's going on Cory, what do you want?" she asked. This time, she told him she wanted to end the relationship. The defendant was more interested in whether she would assist in his prosecution. "Just remember what you said. You said that you would never be the one to do it to me. That's what you said, so, right?" She told him he should have thought about that before he attacked her. Clearly alarmed, he replied: "So what are you saying? What are you saying?" She told him, "Whatever however you want to take it." He said: "I'm saying I don't deserve to spend the rest of my life in here." He reminded her that every time she looked at their daughter she would see him.
Months later, after he was indicted and perhaps to his surprise, still in jail, he and his friend Celine cooked up another scheme to avoid prison. Celine promised the defendant he would procure an affidavit from the complainant—presumably one in which she would recant the allegations she initially made against him. Celine said he would do "everything in my capacity to make this happen for you."
The defendant's calls to the complainant continued. He proposed marriage in a call made on October 5, 2016. Ultimately, Ms. G. offered to "just vanish. With the air." Which is what she did after months of calls from the defendant, and pressure from third parties acting at his behest.
On the surface, these calls might seem annoying rather than coercive, particularly in light of the complainant's ambivalence about participating in the criminal justice process to begin with. The People presented an expert witness, Kristen Slesar, a clinical social worker. She testified about the dynamic of domestic violence and explained the so-called "Cycle of Violence," which prevails in many relationships plagued by domestic abuse. The first phase of the cycle in a relationship where domestic violence is present is the tension-building phase in which a minor assault occurs. The second phase is marked by an acute battering incident in which the brutality increases—often generated by jealousy and possessiveness—and the victim suffers a severe beating. The final phase in the cycle is the so-called "Honeymoon Phase," in which the abuser professes profound sorrow for his violent acts, promises to change and showers his victim with attention and what appears to be love. And then the cycle begins anew. The purpose of this behavior, Ms. Slesar testified, is to keep the victim in the abuser's power and control.
The three-part Cycle of Violence was first put forth in 1979 by Rutgers University psychologist and faculty member Lenore E. Walker. Her book, The Battered Woman, revolutionized the way in which social workers, medical personnel, the legal profession and the courts looked at domestic violence.
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Significantly, Ms. Slesar said studies show that abusers use a variety of techniques not only to keep a victim in a domestic-violence plagued relationship, but to prevent her from cooperating with the authorities when he beats her to the point the police become involved. An abuser may do the obvious to discourage cooperation with authorities—injure a victim or threaten to do so—or may engage in less obvious behavior, offer apologies and words of love, or appeal to the victim's feelings of guilt.
In an effort to show the nature of the couple's relationship, the People introduced several NY P.D. Domestic Incident Reports involving prior acts of harassment, including one in which the couple fought because Mr. Roby would not allow Ms. G. to remove their child's diapers and baby formula from his apartment. When she refused to leave without them, he called the police. Officer Yacopino, who responded to that call, testified at the hearing. Attempting to use on-the-scene mediation to diffuse the situation, the officer asked the defendant to give the items to Ms. G. and let her be on her way. The defendant refused, saying the diapers and formula belonged to him. Incredulous, the officer had no choice but to tell Ms. G. he was unsuccessful. Officer Yacopino testified that he felt so sorry for her that he dipped into his own wallet to give her $10 or $15 to buy more.
Conclusion.
The evidence shows the complainant was a victim of domestic abuse and deeply ensconced in a relationship dominated by a cycle of violence. Ms. G. and Mr. Roby were in an intimate relationship for four years and had a child in common. She lived in a shelter and was in poor financial condition. In the recorded phone calls introduced into evidence, the complainant spoke of a series of past, escalating injuries she suffered at the hands of the defendant. Yet despite this behavior, Ms. G. expressed continued love for the defendant and uncertainty about their future. She may have been ambivalent, but the evidence is clear that Ms. G. was a battered woman. Accordingly, the subtle—and not-so-subtle—messages given to her by the defendant in calls between his arrest and the presentation of his case to the Grand Jury were designed to get her to continue to protect him. He was so desperate to avoid indictment for the alleged assault that he was willing to ignore Rikers' warnings that his calls were being recorded and risk further criminal charges for violating the order of protection barring contact with Ms. G. He directly tried to discourage the complainant from cooperating with the prosecution and enlisted third parties to assist him with this task.
The People have proven by clear and convincing evidence that the defendant intended to prevent Ms. G. from participating in the prosecution against him. By so doing he has forfeited his right to confront her at his upcoming trial.
The People will be permitted to introduce out-of-court statements made by the complainant regarding this incident. The extent to which they will be permitted to do so will be determined outside the presence of the jury immediately prior to trial with consideration to factors such as repetitiveness and undue prejudice to the defendant.
This constitutes the Decision and Order of the Court.