People v. Encarnacion , 926 N.Y.2d 446 ( 2011 )

McGuire, J. (concurring).

The principal issue discussed and resolved by the majority is whether the People proved that defendant committed misconduct that caused the unavailability of a witness. That issue is a difficult one if, as I maintain, there is no competent evidence that defendant can be held responsible for a threat allegedly made by an unidentified “friend” of his. My disagreement with the majority is not about how it resolves the issue. I express no opinion on it. Rather, I disagree with the majority about whether we should resolve it at all. At least implicitly, the majority recognizes that it need not resolve it, but does so nonetheless and without explaining why. As discussed below, because we need not resolve the issue, we should not.

At a Sirois hearing, “the People must demonstrate by clear and convincing evidence that the defendant, by violence, threats or chicanery, caused a witness’s unavailability” (People v Cotto, 92 NY2d 68, 75-76 [1998]). If the defendant thus has waived his constitutional right of confrontation, testimonial statements by the witness, such as the grand jury testimony of the witness, are admissible at trial despite the witness’s absence. Violence, threats and chicanery are instances of the kinds of misconduct that will support a finding of waiver (see People v Geraci, 85 NY2d 359, 366 [1995] [“the principle is often characterized as involving waiver by misconduct” (internal quotation marks and citation omitted)]).

The People rely in part on authorities standing for the proposition that the requisite misconduct can be established by a showing that the defendant exercised a domineering influence over the witness and exploited that relationship to secure the witness’s unavailability (see People v Johnson, 93 NY2d 254 [1999]; People v Byrd, 51 AD3d 267 [2008], lv denied 10 NY3d 956 [2008]; People v Jernigan, 41 AD3d 331 [2007], lv denied 9 NY3d 923 [2007]). But in these cases, either the witness was a child (Johnson, 93 NY2d at 257) or the evidence established a history of physical or mental abuse (Byrd, 51 AD3d at 273 [summarizing evidence of acts by the defendant and his relatives and noting that “(a)ll this occurred in the context of a relationship with a long history of physical and mental abuse”]; Jernigan, 41 AD3d at 332 [concluding that evidence at Sirois hearing was sufficient “especially when viewed in a backdrop of (defendant’s) several acts of violence going back to the 1980s”]). In this case, Ofelia, the witness, was not a minor, and there was no evidence of a history of abuse. The majority does not address the People’s arguments based on these precedents, and I express no opinion on those arguments. In my view, suffice it to say, those arguments also raise difficult questions that need not be resolved to decide this appeal.

Two witnesses testified at the midtrial Sirois hearing, Ofelia’s mother and Detective Robert Martin. The detective’s testimony added little, if anything, as he testified to not much more than that Ofelia told him prior to trial that she “still loved” defendant, was not going to testify and hoped he “gets out.”

Ofelia’s mother, Nancy Torres, testified that she never heard defendant threaten her daughter. The court asked her, “[D]id your daughter ever say to you that I have been threatened?” She responded, “Nope.” Indeed, she went further and, after stating that defendant had never threatened her, testified in response to another question from the court that defendant “never threatened [Ofelia].” At one point on cross-examination of Ms. Torres, she testified that Ofelia had said that a friend, not friends, of defendant had made such a statement to her. There was no testimony at all identifying this friend, a “person from the street,” and no testimony describing the nature of his relationship with defendant. Notably, in its written opinion the trial court made no mention of Ms. Torres’s hearsay testimony regarding what Ofelia had said an unidentified, person had said; nor did the court make any finding that defendant knew about, condoned or encouraged the alleged threat.

Nonetheless, the majority writes that “Ofelia told Nancy that she would no longer cooperate ... or testify at trial because defendant, through his friends, told her that if she ‘comes in’ he would ‘get her.’ ” Similarly, the majority writes both that “defendant engaged in misconduct which induced Ofelia’s refusal to testify ... by threatening her with violence” and that her “refusal to testify was the product of fear, precipitated by defendant’s threats.” The additional, essentially identical statements the majority makes need not be catalogued. To repeat, there is no credible evidence that defendant knew about, condoned or encouraged the alleged threat.

The only evidence to which the majority can point is Ms. Torres’s testimony that “[defendant’s] friends from the street were telling her that Sammy keeps saying if she doesn’t stay with him, that he was going to hurt her.” Even putting aside that on cross-examination Ms. Torres repeatedly stated that her daughter had told her that an alleged friend, not friends, of defendant had made such a statement, this seems too slender a reed to support the conclusion that the People proved defendant’s responsibility for such a threat by clear and convincing evidence. After all, this testimony boils down to an in-court statement by Ms. Torres about an out-of-court statement her daughter assertedly made about an out-of-court statement assertedly made by unidentified persons about an out-of-court statement assertedly made by defendant. Any conclusion that this is competent evidence would be at least a controversial one. On this critical issue, the majority cites no precedent supporting its implicit position that such an extended chain of out-of-court statements originating with out-of-court statements by unidentified persons is not only competent evidence but evidence that can play a decisive role in satisfying the prosecution’s burden to prove its case by clear and convincing evidence. To repeat, the trial court did not make any finding that defendant knew about, condoned or encouraged the alleged threat. And, of course, the trial court, not the majority, was able to see Ms. Torres and assess her demeanor. The majority does not explain why it nonetheless believes it appropriate to make such a finding.

The majority incorrectly writes that Ofelia “admitted that she had lied, changing her original story only because defendant so demanded.” The majority’s sole support for its assertion that Ofelia “admitted that she had lied” is Ms. Torres’s testimony that Ofelia had told her that defendant “wants her to say that Johnny did the stabbing and he [defendant] will come out of jail faster.” The problem, however, is that the majority simply assumes that the truth is the account Ofelia gave in the grand jury rather than the out-of-court statements that Johnny did the stabbing. There was no evidence at the Sirois hearing that substantiates that assumption. As noted, only Ms. Torres and Detective Martin testified, and neither witness gave any testimony, let alone competent testimony, concerning who had done what to whom in the apartment. The majority has nothing to say by way of a response to this point. Ironically, however, the majority writes that “[i]n finding that defendant procured Ofelia’s unavailability at trial, it . . . would have been improper[ ] to come to the antecedent conclusion . . . that defendant was guilty of the crimes charged.”^* Although the majority writes that Ms. Torres “overheard a telephone conversation between Ofelia and defendant where Ofelia discussed tailoring her testimony to lessen defendant’s prison time” (emphasis added), the record does not support this statement. Not only does that loaded verb not appear in Ms. Torres’s testimony, nothing in her testimony otherwise provides fair support for the majority’s statement. At most, a snippet of her testimony suggests only that Ms. Torres drew the conclusion that Ofelia and defendant were having such a discussion, but Ms. Torres made clear she only heard her daughter’s side of certain of the phone conversations. The trial court’s written opinion does not mention such a discussion let alone find that it occurred. Again, moreover, the majority is simply assuming that what defendant wanted Ofelia to say was not the truth.

Two final points. First, it is not clear whether the majority believes I disagree with its statement that a “defendant waives his right to confront a witness by procuring the witness’s unavailability through misconduct notwithstanding the defendant’s belief or . . . the court’s belief as to defendant’s guilt or innocence of the crimes charged.” I agree. Second, the evidence of the number of phone calls defendant made to Ofelia — the number corroborated by telephone records or the vastly greater number to which, according to the majority, Ms. Torres testified — has little or no probative value on the critical question of whether defendant threatened Ofelia or otherwise committed misconduct that induced her not to testify.

In sum, whether the People met their burden of showing that defendant engaged in “misconduct” causing Ofelia’s absence is a difficult question I would not decide. We should not decide this question if we need not decide it (see Matter of Clara C. v William L., 96 NY2d 244, 250 [2001] [“We are bound by principles of judicial restraint not to decide constitutional questions unless their disposition is necessary to the appeal” (internal quotation marks and citation omitted)]). On this point, the majority is silent. We need not decide it, and the majority agrees, because the evidence of defendant’s guilt is utterly overwhelming without regard to Ofelia’s grand jury testimony. Defendant sealed his own fate with the exculpatory (and highly implausible) statement that he first made to the police and, most importantly, the damaging written and videotaped admissions he subsequently made after learning that Ofelia had survived despite the more than 20 stab wounds she had suffered. Those admissions constituted a virtual confession, as defendant admitted getting a knife and being responsible for the wounds inflicted on both victims. In fact, the evidence established that defendant used three knives, two of which were broken, in attacking the victims.

Another key consideration is that in his summation defense counsel raised only the question of defendant’s intent. But defendant’s attack on the decedent was as savage as his attack on Ofelia. The decedent suffered 15 incised stab wounds and 16 stab wounds. Counsel’s summation was just five pages only because he had nothing to say on the issue of intent given the ferocity of the attacks. Accordingly, I would hold that any error in the admission of Ofelia’s grand jury testimony was harmless (People v Crimmins, 36 NY2d 230, 242 [1975]).

For two reasons, I would not decide the Crawford issue defendant raises with respect to one aspect of the testimony given by the forensic biologist, Danielle Coye, called by the prosecution. Without objection, Coye testified, inter alia, that DNA profiles were collected from the evidence, that she determined them to be those of defendant, the decedent and an unknown female, that scrapings from defendant’s sweat pants had a mixture of DNA consistent with defendant and an unknown female and that scrapings from defendant’s denim jacket were consistent with a mixture of decedent, defendant and the unknown female. After this testimony, Coye was asked if she also examined jeans and sneakers that had been recovered. Coye answered and, after testifying that human blood had been found on the jeans, the prosecutor asked where the blood on the jeans had been found. Defense counsel then objected as follows: “Judge, I must object unless this witness personally examined these items and performed the DNA.”

The People reasonably argue that having raised no objection to Coye’s testimony regarding her conclusions with respect to DNA results, this sole objection was but a foundational, evidentiary objection. In any event, it is enough to note that to preserve a claim for review, a defendant must make a specific objection that alerts the trial court to the same claim that is pressed on appeal (see People v Gray, 86 NY2d 10, 19 [1995]; People v Ford, 69 NY2d 775, 776 [1987]). No different rule applies when the appellate claim is couched in constitutional terms (see People v Rivera, 33 AD3d 450, 450-451 [2006], lv denied 7 NY3d 928 [2006] [failure to specify grounds for objection rendered unpreserved defendant’s claims that the evidence admitted “violated the hearsay rule and the Confrontation Clause”]). As the objection defendant voiced did not alert the trial court to any constitutional claim, especially given the context of the unobjected-to testimony that preceded the objection, it is unpreserved. The objection may have been based on hearsay grounds, but the erroneous admission of hearsay does not establish a violation of the Confrontation Clause. Like the majority, I would not review defendant’s current claim in the interest of justice. The second reason I would not decide the Crawford issue is that any error in the admission of the testimony that was objected to was harmless for the same reason any error in the admission of Ofelia’s grand jury testimony was harmless.

The majority is correct that defendant’s claim that the trial court should have charged the defense of extreme emotional disturbance is unpreserved. Like the majority, I would decline to review the claim in the interest of justice, but unlike the majority I would leave it at that, particularly because the record suggests defendant abandoned this claim after the charge conference and never pressed during the conference the arguments he now advances. As for defendant’s claim that his trial counsel denied him the effective assistance of counsel by not pressing the initial request for an instruction on extreme emotional disturbance, I agree with the majority that it is not reviewable on direct appeal (People v Love, 57 NY2d 998 [1982]). I also agree that there is no basis for reducing the sentence.

Andrias, J.E, and Friedman, JJ., concur with Román, J.; Catterson and McGuire, JJ., concur in a separate opinion by McGuire, J.

Judgment, Supreme Court, Bronx County, rendered December 19, 2007, affirmed.

* I do not mean to suggest that if there had been clear and convincing evidence at the Sirois hearing that defendant was guilty of the crimes charged, it would be impermissible to infer that the evidence established that defendant had induced Ofelia to lie. I note, too, that the People do not contend that the evidence at the Sirois hearing includes the evidence received at the trial prior to the hearing.