Opinion
No. 2138/2014.
03-31-2016
The PEOPLE of the State of New York v. Supreme MOYE, Defendant.
DEBORAH S. MODICA, 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.
FINDINGS OF FACT
The People's Case
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. , 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.
Due to the fact that the complainant is a minor, the Court has substituted her initials and her mother's initials to shield both the child and her mother from identification.
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” 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-xxxx . Photographs of the complainant's injuries, taken by her mother on April 21, 2014 and sent to ADA Coughlin, were also received into evidence.
A screen shot is an image of data displayed on the screen of a computer or a mobile device. (Oxford Dictionary [2016], screen shot [Note: online version]
The complainant's phone number is redacted for privacy reasons.
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 “don't go. You gotta get low.” 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. “I want to get this shit over with so I can come home. Make sure you hold your ground. Make sure they don't make you do anything you don't want, you hear me.” Later in the conversation, the defendant tells B.S. “don't talk to nobody, you got to stay low ... I got to make sure I keep in contact, I'm going to make sure Pookie and them keep in touch with you” And further on, the defendant says “make sure you stay away from all that contact shit.” On the fourth phone call, made on August 10 to an unidentified woman, the defendant asks “did you speak to Pookie?”, to which the girl responds “he's trying to fix the girl but she keeps saying some other shit.”
ADA Coughlin also received a phone search from Rikers Island showing that someone using the defendant's “book and case” number dialed B.S.'s phone number three times on February 14, 2015 and twice on February 19, 2015. A reverse search for all calls to B.S.'s number revealed that the complainant's number was dialed many times, using the defendant's “book and case” number. A call made on December 24, 2014 was recognized by the ADA as made by the defendant to B.S., both of whose voices she recognized. This call was not made using the defendant's “book and case” number. In this call, B.S. says “I got your letter”, and the defendant responds “I'm going to make sure I keep in contact with you.” Another call, made on February 23, 2015 by the defendant, but not using his “book and case” number, to B.S., has the defendant telling her “make sure you do what we talked about when you home.” Defendant continued to have contact with B.S. in violation of the order of protection through July 5, 2015.
Since the grand jury presentation, where the complainant failed to appear, ADA Coughlin had no contact with the complainant, other than one phone call where ADA Coughlin told B.S. she had phone calls between the defendant and another woman that she wanted her to listen to; B.S. said “I know about Tameeka.” Coughlin was able to keep in touch with her mother, however. B.S. failed to respond to a trial subpoena for February 18, 2015 mailed to her home. A phone call to her phone number was picked up and immediately hung up. On another call to her number, Coughlin left a message.
Another call in June 2015 was not responded to, nor a subpoena and a call at the end of June 2015 for the Sirois hearing. No phone calls were answered or responded to. A subpoena for July 28th for the Sirois hearing was also sent to the home but not responded to. A material witness order was never requested.
C.S., B.S.'s mother, called ADA Coughlin to tell her that she randomly heard from her daughter, who only sometimes came home. She did not know where B.S. was living. C.S. did tell B.S. in July about the subpoena and that she had to go to court, but B.S. said she was not going to court. ADA Coughlin had not seen B.S. since August 5, 2014.
C.S., the mother of B.S., testified that B.S. was born on xxxx xx, xxxx . On April 21, 2014, the 15–year–old B.S. was dating the defendant, Supreme Moye.C.S. received a call at work from B.S. at about 2:40 p.m.; B.S. was screaming at the top her lungs, like “an animal cry, like an animal scream.” C.S. heard B.S. say “Preme, a buck fifty” which she understood to mean a cut. B.S.'s phone hung up and C.S. told her boss she had to leave. As she was leaving, a police officer called her and told her that B.S. was being taken to Long Island Jewish Hospital. When C.S. arrived at the hospital she saw B.S. with an open wound to her face and wearing a neck brace, reaching out to her mother. After she was treated at the hospital, C.S. took B.S. home.
The complainant's date of birth is redacted for privacy reasons.
That same day, B.S. logged into her Facebook account on her mother's phone and showed her a message from the defendant, whose Facebook name is “Preme Low.” C.S. also recognized the defendant's photograph on the account. She took a screen shot of the message and forwarded it to the detective. C.S. testified that an instant messaging inbox can only be viewed by the Facebook account holder, not the public.
About two days after April 21, C.S. again looked at B.S.'s Facebook page and the Facebook page with the name “Preme Low” with the defendant's photograph next to it. C.S. again took screen shots of postings on the “Preme Low” page and sent them to the detective.C.S. did not physically see who had placed the posting on the “Preme Low” Facebook page.
In one of the postings, B.S. was “tagged”, meaning it was also sent to her by name, as explained by C.S.. The post from “Preme Low” read “I'M SORRY FOR WHAT I DID. I TOOK IT TOO FAR. NOW, I GOTTA HAN(sic) THE CONSEQUENCES # SIMPLE LIVE IN. WE LEARN TRUST NO BITCH' CH(sic) DREAMS, (two money with wings emojis) FUCK everything Else. I HOPE YOU COULD AT LEAST FORGIVE ME (two sad face emojis). B.S.'s response read “I will never forgive you, You scar'ed me for lifeee. I hav Live with My Marks. I could of Died. Love Is Really Blind.”
An emoji is a small digital image or icon used to express an idea or emotion in electronic communications. (Oxford English Dictionary [2016] ) According to Emojipedia, the emojis used in this message represent a sad face and money that is flying away. Emojipedia
Other messages received into evidence read “Idk Stupid Im asking u wen u leaving your house.” It was sent to B.S.'s phone number. About two hours later, a message sent from the Preme Low account said “Meet me in mcDonald's I'm here already real quick.” An hour and a half later, a message came to B.S.'s number: “U dead bitch. U burned me ima end ur life.” and then, at 8:33 p.m., the message “U violated.”
Before April 21, 2014, C.S. had met the defendant once outside on the block where she had lived and spoken to him on the phone a number of times. She did not approve of B.S. dating a person so much older and “more advanced” than her daughter, and who had caused her daughter to become “too different”; to miss school and stay out late, after dating the defendant. At the time of her testimony, C.S. still did not see B.S. every night and B.S. had not returned to school.
The Defense Case
JOHN BROWN, a private investigator, spoke with C.S. in front of her home on 100th Avenue in Queens on April 15, 2015. It had been Brown's intention to interview B.S., but he was unable to because she was not there. During his conversation, C.S. told Brown that B.S. would appear in court and testify and that she didn't want him or the defense attorney speaking to her daughter.
The Court finds that all witnesses testified believably.
CONCLUSIONS OF LAW
A. THE ADMISSION OF ELECTRONIC EVIDENCE—FACEBOOK INSTANT MESSAGES
Defendant first challenges the Court's evidentiary ruling permitting both “instant messages” sent via Facebook from an account identified as the defendant's, alleging that there was insufficient authentication of the messages to permit their acceptance into evidence.
Instant messaging describes a class of services that permit users of computers, data-enabled cell phones, and other electronic devices to send one another text messages, as well as audio and video messages, (such as SKYPE), instantaneously. Users establish a virtual presence based on nicknames rather than computer IP addresses, and can add friends and acquaintances to a contact list. To start a conversation, a user clicks on a name in the contact list and types a message. (Andrew M. Grossman, Comment, No, Don't IM Me—Instant Messaging, Authentication, and the Best Evidence Rule, 13 Geo Mason L Rev 1309 (Spring/Summer [2006] ).
In terms of admissibility, courts treat electronically stored information the same as conventional types of evidence. Lorraine v. Markel American Ins. Co., 241 FRD 534 [D Md 2007] ; Tienda v. Texas, 358 SW3d 633, 2012 Tex Crim App Lexis 244 [Tex Crim App 2012] ; State v. Eleck, 130 Conn Ap 632, 23 A 3d 818 [Ct Ap Conn 2011] ; United States v. Siddiqui, 235 F3d 1318 [11th Cir2000], cert denied 2001 U.S. Lexis 4878 [2001]. Evidence can be properly authenticated with evidence that is sufficient to support a finding that the matter in question is what its proponent claims it is. Lorraine v. Markel, supra; United States v. Simpson, 152 F3d 1241 [10th Cir1998] ; Siddiqui, supra at 1322; Fed R. Evid 901 [a]. This can be done circumstantially by appearance, contents, substance, internal patterns or other distinctive characteristics of the evidence. Siddiqui, supra. The burden of proof for authentication is not high [United States v. Safavian, 435 F Supp 2d 36 [DC Cir2006] ; United States v. Gagliardi, 506 F3d 140 (2nd Cir2007) ]. In fact, the Court need only find that there is “a reasonable likelihood” that the evidence is what its proponent claims. Safavian, supra at 38; Tienda v. Texas supra at 642 ; Gagliardi, supra; Fed. R. Evid 901 [a]. The person seeking to introduce the evidence does not have to “rule out all possibilities inconsistent with authenticity”. United States v. Pluta, 176 F.3d 43, 49 [2nd Cir1999].
In this case, the People introduced as People's Exhibit 11A, a “screen shot”, or photograph, of an instant message sent to B.S.'s Facebook account viewed by B.S. and her mother, the witness C.S., on the day of the stabbing and slashing of B.S., after they returned from the hospital. B.S. herself logged into her account using her mother's cell phone and showed her mother the message from the account registered as “Preme Low”, which C.S. testified was the defendant, Supreme Moye's nickname, and with the defendant's picture on the posting. The contents of the message to B.S. said “I'm sorry for what I did. I took it too far. Now I got to han (sic) the consequences. The consequence is simple. Live in. Learn trust. No bitch dream, fuck everything else. Hope you could at least forgive me.” B.S. responded “I will never forgive you. You scarred me for life. I have lived. My marks. I could of died. Love is really blind.” The additional circumstances known in this case are that B.S., 15 years old at the time, was dating the defendant, and had called her mother screaming earlier that day saying “Preme. Buck fifty”, which her mother understood to mean B.S. was cut by her boyfriend, the defendant; that C.S.'s own visit to the hospital shortly after that call, plus the medical records received into evidence at the hearing, showed that B.S.'s neck had been deeply slashed, her face contained a stab wound, that fingers on her right hand had been slashed, and that she had two injuries caused by cutting or stabbing on her back. B.S. told the medical staff treating her that her boyfriend had caused the injuries at a McDonald's in Queens. The contents of the writing which the People sought to introduce as People's Exhibit 11 A, is an apology to B.S. seeking forgiveness and admitting it was “taken too far”; from an account bearing the defendant's nickname and photo, and was sent personally to the victim of the crime, not posted publicly. B.S. believed she was responding to the defendant when she said “I'm scarred for life.” In addition, the instant message was within a short period of time of the assault. All of these facts demonstrate direct knowledge of the crime. See Campbell v. Texas 382 SW3d 545, 2012 Tex App Lexis 7684 [Tex. App 2012]. All of these circumstances together are sufficient to establish a reasonable likelihood that the writing came from the defendant and is sufficient authentication. People v. Green, 107 AD3d 915 [2nd Dept 2013], lv denied 22 NY3d 1088 [2014] ; People v. Pierre, 41 AD3d 289 [1st Dept 2007], lv denied 9 NY3d 880 [2007] ; See also In the Interest of F.P., 2005 PA Super 220, 878 A.2d 91 [2005] ; Massimo v. Texas, 144 SW3d 210, 2004 Tex App Lexis 7069 [Ct. Ap. Texas 2004].
The many cases that have dealt with this issue do not require any certain type of evidence, only that the circumstantial evidence be sufficient to support a finding that there is a reasonable likelihood that the matter in question is what its proponent claims it is. The defendant's argument concerning knowing exactly who typed out the message, by eyewitnesses or other evidence, does not defeat admissibility, but rather is more appropriately addressed to the weight of the evidence to be given by the fact finder. Safavian, supra at 41. Although a message can be traced to a computer, for example, it can almost never be traced to a specific author with any certainty. In re F.D., supra. The same uncertainties exist with traditional written documents, however; they can be forged, or typed on someone else's computer or typewritter. Id. These are separate issues, however, from whether such documents can be authenticated under the law.
Nor can it be said that the complainant is the only witness qualified to testify about her own Facebook account. In People v. Pierre, supra, the instant messages in issue in that case were found to be properly authenticated even though the victim had been murdered, and was clearly unavailable to authenticate the messages she received as coming from the defendant. Nor was the Internet service provider evidence presented. Nevertheless, the First Department found that the messages were authenticated by other evidence, including a close friend of the defendant who testified to the defendant's screen name, and a cousin who testified that she sent an instant message to the same screen name and received a reply, which would have made no sense unless it came from the defendant. see also Dickens v. Maryland, 175 MdApp 231, 927 A.2d 32 [Md App 2007]. In this case, C.S. testified to the defendant's screen name and his photograph; the contents of the message made no sense unless it was from the defendant, given all the circumstances in the case.
As to People's Exhibit 12, C.S. also testified that B.S. logged onto her Facebook account on C.S.'s phone, and showed C.S. a series of messages from the “Preme Low” account to B.S.'s instant message inbox, a private, as opposed to public, message. Again the defendant's photo was next to the “Preme Low” messages. The messages seen by C.S. after the assault on April 21 read as follows:
Preme Low: idk stupid I'm asking u wen u leaving your house. # xxx-xxx-xxxx
sent 12:11
____________________ 1:59 p.m. ______________________________________
Preme Low: Meet me in McDonald's I'm here already real quick
____________________ 3:30p.m. ______________________________________
Preme Low: U dead bitch u burned me ima end ur life
____________________ 8:33 p.m. ______________________________________
Preme Low: U violated
The redacted phone number of the complainant.
These messages, containing threats to B.S., have been sufficiently authenticated by the People as having a reasonable likelihood that they came from the defendant, based on all the circumstantial evidence referred to above.
Defendant's motion to preclude People's Exhibits 11 A and 12 is denied, based on the significant circumstantial evidence of authentication.
B. THE SIROIS ISSUE
A 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 [2nd Cir1982], 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 637 [6th Cir1975], cert denied 422 U.S. 1008 [1975] ); by threats (United States v. Balano, 618 F.2d 624 [10th Cir1979], cert denied 449 U.S. 840 [1980] ); or by actual violence or murder (United States v. Thevis 665 F.2d 616 [5th Cir1982], cert denied 459 U.S. 825 [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. Mastrangelo, 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], lv denied 10 NY3d 956 [2008] ; see also People v. Johnson, 93 N.Y.2d 254 [1999]. This is especially true in domestic violence cases. see People v. Santiago 2003 N.Y. Slip Op 51034[U][NY Cty 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 N.Y.2d 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, at 366; People v. Cotto, 92 N.Y.2d 68 [1998] ; Holtzman v. Hellenbrand, 92 A.D.2d 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, in order 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 this case, the People produced evidence of numerous instances of the defendant's criminal conduct in reaching out to the complainant from Rikers Island in violation of the order of protection (“make sure I keep in contact with you”), tampering with a witness (“Don't go ... You got to get low. All the way low ... stay low and don't go”)(“Make sure you hold your ground. Make sure they don't make you do anything you don't want ... Make sure you stay away from all that contact shit”), and his use of third parties to control her (“I'm going to make sure I call Pookie and them to keep in touch with you”). In addition, the defendant's conversations with others revealed the extent of his efforts to control B.S. and prevent her from testifiying. In one of his phone calls, defendant asks an unidentified woman “have you spoken to Pookie?”, to which she responds “Pookie is trying to fix the girl but she keeps saying some other shit.”
The context surrounding these conversations is the defendant's violent assault against the 15–year–old complainant, and his track record of control demonstrated by the fact that she returned to him after that violent assault and before his arrest four months later. Although she was initially cooperative with the prosecution at the beginning of August, providing a videotaped statement and agreeing to testify before the grand jury, as the defendant began calling her from jail right after his arraignment, and dispatching surrogates to also contact her, B.S. failed to appear for the taxi both times it was sent to pick her up for the grand jury; she ultimately refused to testify, wouldn't answer the Assistant District Attorney's phone calls, and ultimately the case had to be presented to the grand jury without her. These circumstances, based on credible testimony of both ADA Coughlin and B.S.'s mother, demonstrate by clear and convincing evidence, that B.S.'s lack of cooperation developed once defendant's repeated defiance of a full order of protection began, and that his illegal conduct can be viewed as an implicit threat to the complainant, since it shows that the defendant, whom she claimed “scarred her for life”, continued to refuse to obey the law. see Byrd, at 271; 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.”).
Given the violent assault on B.S., and her very vulnerable age, the effort by the older defendant to control her and prevent her from testifying against him can be viewed as implied threats. People v. Jernigan, 41 AD3d 331 [1st Dept.2007], lv denied 9 NY3d 923[2007] ; Byrd, supra; Johnson, supra. Indeed, based on all the evidence presented, it has been established that B.S. was far more afraid of testifying against the defendant than defying the District Attorney's efforts to get her to testify. The claim by the defense that she just forgave the defendant is far weaker than the evidence establishing his efforts to control her and prevent her from testifying.
The defense citation of cases referring to C.P.L. § 670.10 and the requirement of establishing the unavailability of a witness in those circumstances, is inapposite to the circumstances here, where a defendant's misconduct is the issue, rather than the issue of due diligence by the People required under the statute. CPL 670.10[1]. That part of the statute is strictly construed and is not treated the same as unavailability due to defendant's misconduct. (Peter Preiser, 2009 Practice Commentary, McKinney's Cons Laws of NY, Book 11A, CPL 670.10[1], at 72). The defendant's misconduct here has been established by clear and convincing evidence, and the complainant's refusal to cooperate with the prosecution, after her initial willingness to proceed, has also been established. Once the complainant refused to testify in the grand jury, and never responded to any phone calls or subpoenas from the People, or responded to urging from her mother over the course of time, there is no requirement that the People must continue to pursue the complainant. Her refusal to cooperate was patent.
Finally, even if the complainant is physically available to testify (an uncertain issue based on her mother's testimony that she does not know where she is staying, and sees or hears from her only sporadically), a 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. Hernandez, 256 A.D.2d 18 [1st Dept.1998], lv denied, 93 N.Y.2d 874 [1999] ; People v. Turnquest, 35 Misc.3d 329 [Sup.Ct. Queens Cty 2012, Zayas, J.]. There is no requirement that a complaining witness must testify at a Sirois hearing to establish this.
The Court therefore finds that the People have met their burden, by clear and convincing evidence, that the defendant's misconduct resulted in the unavailability of the complainant to testify, and the waiver of his right to confrontation and the rules against hearsay. As a result, the People are permitted to introduce at trial B.S.'s statements to members of the District Attorney's Office and to her mother concerning the incident as well as her statements to the 911 operator (which in any event may be separately admissible as excited utterances, although that issue has not been the subject of this hearing).
Separately, the statements made by a complainant in a domestic violence case to medical personnel are admissible at trial as relevant to diagnosis and treatment under the business records exception to the hearsay rule. People v. Ortega, 15 NY3d 610, 613 [2010]. Business records are deemed trustworthy because the person making the entry has the responsibility to keep accurate records that can be relied on for business purposes. Id. at 617 Hospital records, in particular, are trustworthy as they are “designed to be relied upon in affairs of life and death'.” Williams v. Alexander, 309 N.Y. 238, 288 [1955]; Ortega at 617. It is settled in New York that domestic violence differs materially in diagnosis and treatment from other assaults, in that doctors in these situations are concerned not only with treating wounds, but also treating psychological and trauma issues, as well as having to develop a safety plan for the victim, once she is released from the hospital. Id. at 619 ; People v. Greenlee 70 AD3d 966 [2nd Dept.2010], lv denied 14 NY3d 888 [2010]. This certainly applies when treating a highly vulnerable 15–year–old victim of a violent assault by an intimate partner. see People v. Caccese, 211 A.D.2d 976 [3rd Dept.1995], lv denied 86 N.Y.2d 780 [1995]. Thus, the complainant's statements to emergency personnel, as well as to the medical personnel at the hospital, are admissible at trial independently from defendant's misconduct.
This constitutes the decision and order of the Court.