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People v. Roby

Prosecutors May Introduce Uncooperating Complainant's Out-of-Court Statements at Trial

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DECISION AND ORDER

*1  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 A.D. 2d 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.

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