Opinion
No. 71033-22
07-17-2023
The People of the State of New York v. Johnathan Wright, Defendant.
Hon. Raymond A. Tierney, Esq. Suffolk County District Attorney By: Anne Oh, Esq. Assistant District Attorney Attorney for Defendant
Unpublished Opinion
Hon. Raymond A. Tierney, Esq.
Suffolk County District Attorney
By: Anne Oh, Esq.
Assistant District Attorney
Attorney for Defendant
Richard Ambro, J.
On June 13 and 14, 2023, the Court conducted a Sirois hearing on the above captioned case concerning the unavailability of a complaining witness whose initials are M.D. After listening to the testimony of the witnesses, reviewing the Exhibits in evidence and hearing the arguments of counsel, the Court makes the following findings of fact.
Facts
At the hearing, M.D.'s Grand Jury testimony was entered into evidence (People's Exhibit 21) as was her sworn statement given to Det. Timothy Cohen on March 3, 2022 (People's Exhibit 20) . Apparent from those exhibits was that M.D. and Jonathan Wright's relationship in early 2021 cycled through a predictable pattern that began in relative peace, then transitioned into physical and mental abuse, and culminated in defendant's expressions of contrition resulting in the reunion of the parties and a renewed period of peace. Constant throughout their relationship -which lasted "for quite some time"- was M.D.'s description of defendant as controlling and who sought to isolate M.D. by taking her "phone away...all the time..." to prevent her from "talking to anyone else." People' Exhibit 20, pg 1.
See , People v. Perkins, 180 Misc.2d 495 (Monroe Cty 1999), hearsay evidence admissible at a Sirois hearing. E.g., People v. Tuzzio, 201 A.D.2d 595 (2nd Dep't. 1994), People v. Small, 177 A.D.2d 669 (2nd Dep't. 1991).
In M.D.'s words, "nice, peaches and cream" GJ pg 6.
As M.D. described, smacking, punching and choking where Mr. Wright would "really try to break my face" GJ pg 7.
M.D. went to Florida in April or May of 2021to let the violence "die down," returning only after defendant promised that it "wasn't going to happen again." GJ pg 8.
M.D. continued in her Grand Jury testimony that the periods of peace were not long-lived. Indeed, in July of 2021, she alleged that defendant committed the acts which constituted the most serious crimes contained in the indictment. Specifically, M.D. claimed that defendant took her and another woman -Jacsiel- to a hotel. There, he terrorized and tortured them by threatening to push them out an open window, then choked and beat them and finally, in retaliation for thinking he was a "pussy," burned them both with a hot clothing iron. GJ pgs. 13-14. As is relevant here, M.D. was burned multiple times on her arm and legs and, after commanding M.D. to undress, she alleged that defendant burned her buttocks and vagina. GJ pg 16. M.D. neither screamed, fought back nor attempted to escape because defendant told her that if she did, "it was gonna get worse" and additionally, M.D. feared reprisal to herself, her son, her son's Godfather, and her sister. GJ pgs 9, 14, 20. Rather than screaming, then, she bit down on her head scarf in an effort to remain silent. GJ pg 16.
According to her Grand Jury testimony, M.D. was left with open and bleeding wounds that were too painful to touch. She couldn't put on clothing for days afterwards because the garments would stick to her un-bandaged sores (defendant allegedly denied them access to any medical care for the first 5 days following the burning and only then provided them with store-bought bandages but without medical oversight or intervention.) GJ pgs 20-22. Significantly, this testimony was corroborated by photographs depicting burn scars on her skin consistent with the shape of the iron's soleplate complete with impressions of the iron's steam vents, as well as a photograph of both victims, lying in bed, wearing only bandages. See, Exhibits 6 and 22.
Defendant was arrested for the assault on Jacsiel on August 17, 2021, at the Extended Stay Hotel in Bethpage, New York. M.D. was present with defendant and, according to Det. Cohen, defendant and M.D. appeared to be "together." After defendant was taken away in handcuffs, Det. Cohen inquired about M.D's well-being, whether she was being forced to act against her will and if she had anything she wanted to tell him. M.D. replied "no," and that she was fine. H 37.
Det. Cohen continued that over the next 6 ½ months the relationship between M.D. and defendant deteriorated and that M.D. began cooperating with the police . On March 3, 2022, M.D. met with Det. Cohen and admitted in a sworn statement (People's Exhibit 20) that, at defendant's insistence, she contrived a story that Jacsiel's accusations against defendant were lies and further, admitted that she too had been a burning victim. H 41-44.
M.D.'s enthusiastic decision to cooperate on March 3, 2022, occurred after 6 ½ months free of the incarcerated defendant's diminished influence.
Against this backdrop, the People submitted recordings of jail calls made after defendant's arrest between defendant and a friend, Freddie Rice, and between defendant and M.D. The calls took place during the period between April 14 and October 23, both of 2022. According to the testimony of Det. Aspromgos, it was during this time that M.D. went from cooperating with the police/prosecution to becoming uncooperative by failing to remain in contact with them.
During a call between defendant and Freddie Rice on June 7, 2022 (Index No. 1212 @ 5:15 to 5:45), Rice recounted how he asked M.D. how she would feel if she cooperated with the prosecution but defendant was nonetheless acquitted. Rice suggested that result would put her life and the life of her child in jeopardy. Rather than assume that risk, Rice suggested that she could just leave it alone and "step away."
In subsequent calls, Freddie described how he gave M.D. $40 to pay for her son's doctor visit (June 22, 2022, Index No. 1511 @ 8:13 -11:06) and in a second call that day, advised defendant that M.D. was "slowly opening up." June 22, 2022, Index 1513 @ 14:25 -15:27.
In calls between defendant and M.D. on September 20, 2022, Mr. Wright expressed himself in endearing terms, proclaiming that he loved and missed M.D. and "just want[ed] to hear her voice and see what's up with her." Mr. Wright also explained that she had "nine different ways" to fix the problem that was created when she initiated this prosecution. For instance, she could recant her allegations in a notarized letter to his lawyer or simply ignore the prosecutors. Defendant likely anticipated M.D.'s cooperation as she repeated her apology for creating his predicament, which prompted his offhand reminder that "I forgave you already." September 20, 2022, Index No. 2550 @ 4:24-5:10.
On September 29, 2022 (Index No. 2642 @ 11:11) defendant reinforced his commitment to M.D. by reiterating that she was his best friend, that he loved her and was unable to shake how he felt about her. Consequently, he decided to persist in violating the terms of the Order of Protection in order to continue speaking with her. Defendant concluded by asking M.D. to reaffirm her love for him, which she did.
Then, on October 20, 2022 (Index No. 2864 @ 9:50) during a conversation between defendant and M.D. he repeated the theme of his love and longing while concomitantly interweaving encouragement that she stand strong against the pressure and threats the prosecution would inevitably bring to bear.
For all intents and purposes, M.D. ended her cooperation with the prosecution by November 10, 2022, when she stopped meeting with the detectives and stopped answering their telephone calls and messages. H 133.
Analysis
A Sirois hearing is held "to determine whether the defendant has procured a witness's absence or unavailability through his own misconduct, and thereby forfeited any hearsay or Confrontation Clause objections to admitting the witness's out-of-court statements" (Cotto v. Herbert, 331 F.3d 217, 225-226 (2nd Cir. 2003); see People v. Siroirs, 92 A.D.2d 618 (2nd Dep't. 1983); People v. Geraci, 85 N.Y.2d 359 (1995); Matter of Holtzman v. Hillenbrand, 92 A.D.2d 405 (2nd Dep't. 1983). The People bear the burden of establishing, by clear and convincing evidence, that the defendant has procured the witness's absence or unavailability (see, Geraci, supra at 367), and "[c]ircumstantial evidence, where present, may be sufficient to sustain a finding that a defendant or someone on his... behalf has been involved in tampering with a witness so as to justify the admissibility of the witness's prior Grand Jury testimony." People v. Hamilton, 127 A.D.2d 691, 693 (2ND Dep't. 1987)); see also People v. Cotto, 92 N.Y.2d 68 (1998).
Although courts initially focused on the use of "violence, threats or chicanery" when deciding whether a defendant procured a witness's absence or unavailability, more recently they have expanded their inquiry to include relationships where a defendant had "coercive control" over the witness. People v. Byrd, 51 A.D.3d 267, 271 (1st Dep't. 2008).
In Byrd, supra, the First Department considered in detail the concepts of domestic violence and coercive control. Domestic violence presents in 3 phases: 1) the tension building phase, 2) the violence phase and 3) the honeymoon phase. "During the first two phases the victim is reduced to a state of fear and anxiety due to impending or actual violence. In the honeymoon phase, the abuser acts with contrition, begs for forgiveness and makes declarations of love. During the honeymoon phase, the victim is seduced into believing that the abuse will cease and that the family will remain intact." Id., at 270.
It's in the honeymoon phase that victims often recant their reports of abuse and refuse to testify. "During this phase, the batterer has, often in violation of an order of protection, repeatedly contacted the victim, professing apologies and declarations of love to trick the victim into believing that the violence will end...[T]he ambivalence inherent in these relationships, i.e., the control and coercion that the victim believes is love, on the one hand, and terror on the other, work together to deter the victim from ever testifying." Id., at 270-271.
Beyond demonstrating that the typical three-phase pattern common in domestic violence cases existed here, the People have presented ample and compelling evidence of defendant's control over M.D. For example: 1) M.D.'s obedience to defendant's commands that she undress to allow defendant access to her buttocks and vagina with the hot iron, 2) her forbearance from screaming or crying out as he burned her, 3) her willingness to take a "scalding hot" 15 minute shower after being burned (Exhibit 20 pg 4), 4) her multiple apologies to defendant for causing his legal entanglement with the criminal justice system, 5) her resistence to escaping to safety or escaping to seek proper medical care after the burning, 6) M.D.'s call to defendant's lawyer claiming that Jacsiel's allegations were lies, and 7) her failure to implicate defendant after Det. Cohen inquired about her well-being as he arrested defendant for assaulting Jacsiel with the hot iron.
In the Court's view, the People have proved, by clear and convincing evidence, that defendant exerted control over M.D. and that his improper conduct, which coincided with her withdrawal from communications with the prosecution/police, induced her unavailability to testify. This was accomplished through jail calls initiated by defendant to M.D. or through contacts with M.D. by Freddie Rice. Those contacts occurred despite an order of protection prohibiting such behavior and demonstrated a willingness to disobey the Court's mandates and the law, neither of which now appeared to offer any degree of protection. Those communications facilitated his seduction of M.D., convincing her that he loved her and instilling in her a sense of guilt and regret for initiating and participating in this prosecution. At the same time, Freddie Rice's veiled threat of retribution against her and her son if she participated in the prosecution clearly added impetus to her acceptance of defendant's loving overtures and her becoming unavailable to give testimony against him. "All this occurred in the context of a relationship with a long history of physical and mental abuse that culminated in the [burning] that led to this case, in which defendant refused to allow [M.D.] to obtain medical attention and threatened her with further abuse were she to seek it." Id., at 273.
Accordingly, having met their burden of proving by clear and convincing evidence that the defendant has procured M.D.'s unavailability through his own misconduct, his hearsay and/or Confrontation Clause objections to introducing into evidence her out-of-court statements at his trial are forfeited.
Consequently, the exhibits admitted into evidence at this hearing, including M.D.'s Grand Jury testimony, her sworn statement, and photographs bearing her written commentary, will be admissible at trial, despite any confrontation rights or hearsay objections from which defendant might have otherwise benefitted.
This shall constitute the decision and Order of the Court.