Opinion
1764/2013
12-15-2015
The People of the State of New York v. Jose Bernazard, Defendant
Attorney for the defendant: Russell Rothberg, Esq. Lynbrook, N.Y.; Attorney for the People: ADA Scott Kessler & ADA Keisha Espinal
Attorney for the defendant: Russell Rothberg, Esq. Lynbrook, N.Y.; Attorney for the People: ADA Scott Kessler & ADA Keisha Espinal
The People have moved to admit into evidence at trial out-of-court statements made by the complainant at or around the time of the commission of the crime, both on audiotape to an Assistant District Attorney, and before the Grand Jury, claiming that the complainant is unavailable to testify at trial due to misconduct by the defendant. The defendant opposes the motion and a hearing was held on July 20, 2015, and continued on September 11, 2015, September 25, 2015, and concluded on October 30, 2015. The following constitutes the decision and order of the court.
Findings of Fact
TARSHA BROWN, an investigator for the New York City Department of Correction, (hereinafter "DOC"), for eleven years, testified that her job responsibilities included retrieving the phone calls of inmates and testifying in court concerning the procedures used by the Department of Correction with regard to such calls. She explained that when inmates first arrive at Rikers Island, they are informed in three different manners that their phone calls will be recorded . They are provided first with an Inmate Handbook upon intake, and advised that all calls are recorded except those privileged, such as calls with their attorneys.
Secondly, there are signs posted next to the phones that the inmates are allowed to use, advising them that the calls are recorded and monitored; and finally there is a recorded message on the phone call itself advising them of the same just before they place their call.
To place a call, an inmate must first enter his 10 digit personal "book & case" number then his six digit personal identification number, before dialing the number he wishes to call. The "book & case" number is unique to each inmate; no two have the same number. The DOC maintains this identifying information for each inmate, along with his personal identification number. Compact discs, containing phone calls made by the defendant, while in custody at Rikers Island, to the complainant's phone, were received into evidence as business records, along with his inmate phone log, and the visitor's log for the defendant reflecting the dates from July 3, 2013, through September 3, 2014. In addition to calls being made from the defendant's book and case number to the complainant's phone number, calls to her number were also made from other book and case numbers and were recorded. Ms Brown testified that inmates do sometimes use someone else's book and case number.
From September 10, 2013 through October 14, 2013, 67 phone calls were made to the complainant's phone number using the defendant's book and case number and some other book and case numbers. Sixteen of these calls were received into evidence as People's Exhibit 4, and played in court, taking over two hours of time.
ASSISTANT DISTRICT ATTORNEY KEISHA ESPINAL, a felony trial lawyer in the Queens District Attorney's Domestic Violence Bureau, was assigned to the prosecution of the case against the defendant on June 13, 2013. The allegations included the defendant violating an order of protection by breaking into the complainant, Christina Rodriguez' home, assaulting her and her son, during which an off-duty police officer, who came to the rescue, was shot, as was the defendant. Ms Rodriguez spoke with ADA Espinal the next day by phone, while she was in the hospital. Ms .Rodriguez' interview at that time was also recorded by an ADA from the Homicide Investigations Bureau. In this statement the day after the crime, the complainant told the ADAs that she had broken up with the defendant, but he had kept calling her all day. She finally answered the telephone, and told him to stop calling her. Later, the defendant broke into her home, started beating her up and also her son, Jacob, whom she was holding. She let him go while the defendant continued banging her head against the wall, kicking her face and body and banging her head on the edge of the door, causing a gash. While the defendant dragged Ms. Rodriguez by the hair to another room, Jacob ran outside screaming for help and an "undercover" police officer came into the apartment, the defendant lunged at him, there was a struggle, and shots went off. Both the defendant and the officer were shot. More police arrived; Ms. Rodriguez went to the hospital, and the defendant was arrested.
On June 20th, 2013, ADA Espinal met Ms. Rodriguez face to face and interviewed her about several incidents. Although the complainant was in pain and had trouble walking, she was pleasant, cooperative, and discussed in detail the history of her relationship with the defendant. Beginning with January 2012, a year and a half before the incident Ms. Espinal was investigating, Ms Rodriguez said that she had broken up with the defendant at that time as well; three days later, while she was asleep, she woke up to find the defendant on top of her with his hands around her throat; he also punched her, and she screamed for help. He had broken in and broken the door to her apartment. Her son was also present during this incident. The landlord called the police and the defendant was arrested.
Ms Rodriguez also told ADA Espinal about an incident that had occurred on March 23, 2012. An order of protection was in effect on that date, based on the January incident, ordering the defendant to stay away from her. Nevertheless, the defendant approached Ms. Rodriguez on the street, and said he wanted to talk to her; when she said she didn't want to have any contact with him, he slapped her and hit her on the right side of her body. Two days later, on March 25, 2012, the defendant called her several times, and left phone messages when she wouldn't pick up, threatening her life.
Ms. Rodriguez also recounted defendant's behavior on July 18, 2012, again with an order of protection in effect, where he called, left threatening messages, and told her he was standing outside her home and watching her. In addition, on December 15, 2012, while Ms. Rodriguez was walking on the street, the defendant called to her and when she turned, he punched her in the face, breaking her nose.
All of these incidents were testified to by Ms. Rodriguez before the Grand Jury on June 20, 2013, and the defendant was indicted for each incident, as well, of course, for the instant matter that occurred on June 13, 2013. Orders of protection issued during the pendency of those matters were received into evidence at the Sirois hearing. At the end of the day, Ms. Rodriguez gave ADA Espinal two phone numbers at which she could be contacted.
Approximately two weeks later, on July 8, 2013, ADA Espinal returned to the Grand Jury to present additional evidence concerning the events of June 13, 2013. Ms Rodriguez appeared once again, testified again, and was very cooperative.
From July 8 until the end of September, Ms Espinal had contact with the complainant. However, at the end of September, Ms. Rodriguez stopped returning the ADA's calls. As a result, ADA Espinal subpoenaed the defendant's visitor logs and phone calls from Rikers Island. Ms Espinal first discovered that the complainant had visited the defendant, using her maiden name, which the ADA recognized from her conversations with the complainant. She also identified the complainant by the photograph taken by DOC of the visitor. ADA Espinal also requested a "reverse search" from DOC, for all calls made to the complainant's phone number from any book and case numbers at Rikers Island. When she listened to the calls, ADA Espinal recognized both Christina Rodriguez' voice and the defendant's voice on the calls.
After that, ADA Espinal subpoenaed Ms. Rodriguez to court for the October 21, 2013 court date. Although she arrived, her demeanor was very different: confrontational, nasty, and unwilling to look the ADA in the eye. During this conversation, the complainant told Ms Espinal that on the day in question, June 13, 2013, she had left the door open for the defendant, (as opposed to his breaking in as she had said previously), that she was "drugged up" when they spoke in the hospital, that her son Jacob had not been hurt, that "both cases were separate" and she was going to hire an attorney. ADA Espinal filed a Brady disclosure with the Court that day, based on this conversation. On that same day, although Rodriguez had told the ADA that she had to leave for an appointment, she was in fact sitting in the courtroom when the ADA arrived for the court appearance.
The following year, in August of 2014, Ms. Rodriguez called ADA Espinal "out of the blue" and requested a copy of her order of protection. When Espinal invited her to come to the Family Justice Center to retrieve it, Rodriguez told her that she was in the hospital, but came in a few days later, on August 12, 2014. On this date, she wasn't as angry as she had been on October 12, 2013, and was pregnant. She requested her order of protection and now gave yet another version of the occurrence on June 13, 2013, causing ADA Espinal to file another Brady disclosure with the Court. In this statement, Ms. Rodriguez claimed that the officer who had come to the rescue had not identified himself as a police officer, that he had been drunk, and that if he hadn't been drunk "this wouldn't have happened". She now said she would testify, but only to what the defendant had done to her.
The Court finds that both witnesses testified believably.
Conclusions of LawA defendant in a criminal case enjoys the right to confront the witnesses against him at trial pursuant to the Sixth Amendment of the United States Constitution. This right can be voluntarily waived by a defendant; it can also be forfeited if his own misconduct renders a witness unavailable to testify at trial. United States v. Mastrangelo, 693 F 2d 269 (1982), cert denied 456 U.S. 973 [1982]; Snyder v. Mass, 291 U.S. 97 (1934). If a witnesses' unavailability is procured by the defendant through chicanery (United States v. Mayes, 512 F 2d 687 [6th Cir, 1975], cert den 422 U.S. 1008 [1975]); by threats (United States v. Balano , 618 F 2d 624 [10th Cir, 1979], cert den 449 U.S. 840 [1980]); or by actual violence or murder (United States v. Thevis 665 F 2d 616 [5th Cir, 1982], cert den 456 U.S. 1008 [1982]), the defendant cannot assert his Confrontation Clause rights or the rules against hearsay to prevent out-of-court statements from being admitted against him. Any other result would mock the very system of justice the Confrontation Clause was designed to protect. United States v. Mastrangelo, supra, at 273. Included in witness intimidation is the use of a relationship in which a defendant has a "controlling" or "coercive" effect on the witness. People v. Byrd, 51 AD3d 267(1st Dept. 2008); see also People v. Johnson, 93 NY2d 254 (1999). This is especially true in domestic violence cases. See People v. Santiago 2003 NY Misc Lexis 829 (NY Co. Sup Ct 2003, Atlas, J.)
New York State has adopted this rule based on the sound public policy of protecting the integrity of the adversarial process by deterring litigants from tampering with witnesses who may testify adversely to them. People v. Geraci, 85 NY2d 359 (1995). At a hearing to determine whether such misconduct occurred, causing a witness to become unavailable to the People, the prosecutor's burden is to show, by clear and convincing evidence, that the witness' unavailability was procured by the defendant's misconduct. Geraci, supra, at 366; People v. Cotto, 92 NY2d 68 (1998); Holtzman v. Hellenbrand, 92 AD2d 405 (2nd Dept. 1983) If the People meet that burden, the defendant is precluded from asserting either the constitutional right of confrontation, or the evidentiary rules against the admission of hearsay, to prevent the admission of the witness' out-of-court declarations. Geraci, at 366; Cotto, at 76. These statements are not limited to Grand Jury testimony but can include other out-of-court statements. Cotto at 77.
In the instant case , the People's proof established that the complainant, Christina Rodriguez, was fully cooperative with the prosecution from the day after the incident in June 2013, until the end of September, 2013. The witness provided an audiotaped interview while she was still in the hospital the day after the crime, and testified twice before the Grand Jury; once in June and once in July. She also always returned the ADA's phone calls prior to the end of September.
The People also established, not only by clear and convincing evidence, but overwhelmingly, that the defendant began calling the complainant from Rikers Island at least at the beginning of September, 2013 in violation of a full order of protection; not only misconduct, but the crime of Criminal Contempt in the Second Degree. A total of 67 calls were made to the complainant by the defendant between September 10 and October 14 of 2013. Alone, the circumstantial evidence of calls being made, without knowing their content, could be sufficient to warrant a finding that the defendant's misconduct induced Ms. Rodriguez' subsequent lack of cooperation with the prosecutors. People v. Encarnacion, 87 AD3d 81 (1st Dept. 2011), lv denied 17 NY3d 952 [2011].
But there is more. The actual content of 16 of those phone calls, tape-recorded by the Dept. of Correction, reveals the full extent of the defendant's efforts to induce the complainant not to testify against him. Within the context of a relationship fraught with domestic violence (see P v. Santiago, supra), as told to ADA Espinal by the complainant, with multiple incidents during the year and a half before the assault alleged in this indictment occurred, and including a broken nose, the defendant's push and pull on the complainant emotionally in his calls demonstrates his attempt to enlist her aid, manipulate her to "stand by him" and "not to let anything come between" them, through a combination of sweet talk, begging, guilt trips, declarations of love, and warnings against others. The defendant exhorted the complainant in his calls that he needed her "to work with me", to "stop holding back", that he needed her "to maintain" because it was hard for him in jail; that he needed her to "step up and believe in me". Not so subtly, the defendant reminded the complainant that he would "fight to the last drop" and that he was "coming home".
In addition to numerous conversations along these lines, the defendant revealed his own misconduct by saying he didn't want to talk on the phone about "speaking to them" when the complainant said she was subpoenaed and would get a lawyer; but finally became more blunt in a later conversation by asking if that "person hasn't called", the "person trying to contact you, and then finally, "The D.A." When the complainant said no, the defendant said point blank, "don't say nothin' - not a word".
The defendant continued, in the many calls to the complainant, to try to make her feel sorry for him ( You're gonna give up on me?") as well as complimenting her (You're a strong woman"), and exhorting her to stay the course ("We need to stay in contact. No sidetracks" "You spoke to the lawyers? They know you're trying to help me". "Gonna check up on you. . . Don't fold or step back . . . Hold your ground . . . Don't let anybody distract you").
The conversations went on for weeks, at great length, all in a similar vein. The defendant even went so far as to ask the complainant to marry him, offer a trip to Aruba, and talk about buying a house for her. In between protestations of love and constant statements of how much he missed her and needed her, the defendant continued to warn the complainant "not to say things they don't know in Court" and to "just stay away from the D.A. as far as you can", when she told him she was going to be in court one day. Over time, as the defendant believes that the complainant becomes less responsive to him, he becomes more aggressive and accusatory toward her ("Don't ignore me! . . . we need each other . . . I'm trying to reach you!" "I need you to maintain . . . please — please — don't abandon me." "You gotta help me get home").
Repeated calls expressing love and concern by the violent partner in an abusive relationship evidences the intent to control and dominate and the intent to affect a witness' cooperation, every bit as much as threats of harm. People v. Smith, 29 Misc 3d 1056, 1058 [Sup.Ct. Kings County 2010, D'Emic, J.]. In this case, a clearer case of witness tampering is hard to imagine, nor is there any question that the defendant's goal was to prevent the complainant from testifying against him. Based on the credible testimony of ADA Espinal, the People established by clear and convincing evidence, that the complainant's lack of cooperation, including the prosecution's need to file two Brady disclosures, developed only after defendant's telephone campaign was in full swing. In addition, defendant's brazen and repeated defiance of a full order of protection issued by the court can be viewed as an implicit threat to the complainant, since it shows he is refusing to obey the law. See People v. Byrd, 51 AD2d 267, 271 (1st Dept 2008); People v. Smith, supra at 1058 : ([o]rders of protection are . . . issued by courts as much to prevent assaults on the psyche of a vulnerable victim as to prevent assaults on her person"). It can be concluded that this complainant, based on the history, knows that the defendant has never obeyed an order of protection.
Nor do any other threats have to be made in order to demonstrate the defendant's intent to cause the complainant's unavailability as a witness, as alleged by the defense. The previous violence in the relationship including a broken nose, and the defendant's willingness to both coerce and control the complainant in his many conversations with her, demonstrate the implied treats to the complainant. People v. Jernigan, 41 AD3d 331 (1st Dept. 2007); Byrd supra; Johnson, supra.
Finally, although the complainant is physically available to testify, she has been rendered unavailable, as a witness, for the People, due to the defendant's actions, by her two recantations, resulting in the People having to file Brady notifications. See People v. Cotto, supra; People v. Geraci, supra; People v. Hernandez, 256 AD2d 18 (1st Dept 1998), lv den, 93 NY2d 874 (1999) (domestic partner victim who refuses to testify and expresses hostility toward the prosecution is unavailable to, and not in the control of, the People); People v. Turnquest, 35 Misc 3d 329 [Sup. Ct., Queens County 2012, Zayas, J.]
The Court therefore finds that the People have met their burden, by clear and convincing evidence, to establish that the defendant engaged in misconduct that caused the complaining witness to become unavailable to the People. As a result, the People are permitted to introduce at trial both the audiotaped interview of the complainant at the hospital the day after the crimes alleged in the indictment, as well as the complainant's two Grand Jury testimonies, since the defendant has forfeited, by his misconduct, his right of confrontation and his right to assert the evidentiary rules as to the exclusion of hearsay testimony.
This constitutes the decision and order of the Court. _________________________ Dated: Queens, New YorkDeborah Stevens Modica, J.S.C.
December 15, 2015