MEMORANDUM Defendant was indicted for two counts each of Murder in the Second Degree and Criminal Possession of a Weapon in the Second Degree, and Reckless Endangerment in the First Degree, in connection with the shooting death of Joel Rashko on May 10, 2014, at Roy Wilkins Park. There were multiple adjournments granted at defendant’s request for the People to investigate allegations that someone other than defendant — namely, Omar Bryan, had committed the murder. The subsequent investigations did not exculpate defendant and the case proceededThis Court granted defendant a Huntley/Wade hearing and, following a hearing, his motion to suppress was denied.The matter was adjourned multiple times and scheduled to begin trial on October 2017. Just prior to trial, the People filed a motion to preclude the defense from introducing evidence of third-party culpability at trial. This Court ordered a Primo hearing which was conducted in which the defense called Omar Bryan, Kalaef Turner and Melvin Anderson as witnesses in an effort to meet their burden to establish the admissibility of evidence that Omar Bryan had admitted to Kalaef Turner and Melvin Anderson that he was the shooter. Omar Bryan denied being at the park that day and testified that he had learned about the shooting at a later time. He admitted being friends with defendant, Kalaef Turner and Melvin Anderson, but denied that they were all members of the Crips gang. Evidence was presented that the Queens District Attorney’s Office had interviewed Omar Bryan, conducted their own investigation, and he had been excluded as the shooter. Kalaef Turner testified that Omar Bryan had admitted to being the shooter in the presence of himself, defendant and Melvin Anderson. He admitted that they had all been fellow members of the Crips gang at some point in time. Melvin Anderson asserted his Fifth Amendment rights. At the conclusion of the Primo hearing, this Court held that the third-party culpability evidence that defendant sought to admit consisted solely of alleged hearsay admissions whose reliability had not been demonstrated, nor were they shown to be independently admissible.1On October 16, 2017, the eve of trial, NBC News 4 New York I-team featuring Sarah Wallace aired a news story purporting to question whether New York laws governing discovery in criminal cases gave prosecutors an unfair advantage. In fact, the news story most prominently provided a forum for defendant to deny committing the crime and to publicize the defense unique spin on the facts and circumstances surrounding the case. For instance, Sarah Wallace stated that defendant had been released on $100,000 bail following questionable lineups in which two witnesses had first identified other suspects. Defendant was filmed stating that he had hired his investigator, Manuel Gomez, after seeing news stories relating to his work on the Pedro Hernandez case in the Bronx. The I-team showed video footage of alleged alibi witnesses that Mr. Gomez had “discovered,” three years after the murder, who claimed that defendant had been present on the block in the neighborhood when the murder was committed. They also showed footage of Mr. Gomez proclaiming that he had “witnesses who were there,” and “video evidence and pictures proving that Mr. Ajaya Neale is innocent.” The news story also indicated that there were several people who claimed that a person named Omar Bryan had admitted to them that he had committed the murder, despite this Court’s determination following a full hearing that the hearsay admissions were not reliable and not admissible at trial. In addition, the I-team showed video footage of Erika King, the People’s sole eyewitness to the murder appearing to claim that detectives had steered her to identify the defendant in a photo array when she was not 100 percent sure, that she had also identified two other individuals who looked familiar, and that she felt victimized because the district attorney had threatened to have her arrested if she did not testify. The news story ended with the defense claiming that police reports, 911 calls and other documents still had not been disclosed and alleging a trial by ambush.On October 17, 2017, the next day, the Court rendered several decisions concerning pretrial discovery motions and motions in limine. There was extended discussion and argument referencing the allegations made in the I-team news story. The People detailed the breadth of documents that they had turned over to the defense since the inception of the case, more than 11,000 documents, contrary to what had been stated in the news story. The People also made a record that the remaining materials that had not been turned over were subject to a protective order, which Victor Knapp, the attorney who represented defendant at the time, knew about. Mr. Knapp acknowledged that he had been given voluminous documents and evidence in the case and that he knew about the protective order. Mr. Knapp also indicated that defendant’s family had hired Mr. Gomez without his knowledge. Mr. Knapp stated that he had not known that the I-team news story was going to be shown, had not known anything about the alleged alibi witness affidavits and video statements, and had not been involved with the video statements of the People’s witness Erika King, all taken by Mr. Gomez. The Court then ordered Mr. Knapp to turn over to the prosecutor the names of the alibi witnesses and the matter was adjourned for the People to investigate the alibi allegations as well as the circumstances surrounding Erika King’s apparent change in the certainty of her identification and allegations of misconduct.Shortly thereafter, Mr. Knapp made an application seeking to be relieved from his representation of defendant for professional and ethical reasons. He informed the Court that defendant had retained Mr. Gomez without his knowledge and, essentially, Mr. Gomez had taken over the case, going out into the field and suddenly located and interviewed alleged alibi witnesses as well as the main eyewitness, Ms. King, without consultation or direction from him. Instead of bringing the results of his investigation to Mr. Knapp, Mr. Gomez gave it to the media without regard to any defense strategy Mr. Knapp already had in place after having represented defendant for three years, during which time there was not the slightest insinuation of the existence of any legitimate alibi witnesses. The sole basis of the alibi that had been offered by Mr. Knapp had been Google maps images of the location of the defendant’s cell phone at locations other than the time and place of the murder. According to Mr. Knapp, since the hiring of Mr. Gomez, his attorney-client relationship with defendant had been eroded and he had lost control over the representation. Based upon Mr. Knapp’s representations as well as what was apparent from the news media coverage and defendant’s indication that he no longer wanted Mr. Knapp to represent him, this Court granted Mr. Knapp’s application and relieved him as counsel. The matter was adjourned for continued investigation by the People and for defendant to hire new counsel.2After several adjournments and following an opportunity to investigate further, the People moved for a Sirois hearing for this Court to determine whether the eyewitness Erika King’s inability to identify defendant at trial was the result of misconduct by the defendant or on the defendant’s behalf, such that the remedy for such alleged misconduct should be the admission of Ms. King’s grand jury testimony at trial. The People also moved to reopen the Wade hearing based upon statements made by Erika King indicating her belief that one of the detectives conducting the photo array was looking at the bottom row of photographs.The defendant opposed the motion for a Sirois hearing arguing that the witness was still physically available to testify and did not meet the unavailability requirement to justify a Sirois hearing. The defense also argued that the conduct that the People claim caused Ms. King’s unavailability was not committed by the defendant.Following extensive oral argument, this Court granted a Sirois hearing as well as the motion to reopen the Wade hearing.The Sirois hearing was conducted on June 8, and June 28, 2018. Erika King, Det. Jessica Romance, Joseph Sierra — records custodian from T-Mobile and Renada Lewis — records custodian from Verizon Wireless, testified on the People’s behalf and the Court credits their testimonies in all relevant and pertinent aspects. Numerous exhibits were admitted in evidence and reviewed by the Court as well.Mr. Manuel Gomez testified on the defendant’s behalf and the Court does not credit his testimony. Mr. Gomez is a private investigator who somehow became involved in the case through the defendant and/or his family on their own, not through Mr. Knapp’s representation. He is an interested witness who, assuming he was paid for his services in this case, was specifically hired by defendant as a result of news stories concerning his “discovering” alibi witnesses in a Bronx case that received significant media attention. Mr. Gomez appears to relish the celebrity and notoriety that comes from his involvement with criminal defendants and he has an apparent relationship with Sarah Wallace because he is usually the key figure in lengthy I-Team Investigation news reports about this case and they usually sit next to each other throughout many of the court appearances and proceedings since his involvement in this case. Mr. Gomez was evasive in his testimony and not forthcoming with respect to relevant issues in this case. He never disclosed a signed copy of the alleged retainer agreement between himself and defendant’s mother despite testifying that there was a signed agreement and being ordered to provide it to the Court. He was extremely argumentative during the hearing and clearly pressed an agenda to publicly smear the prosecutor and NYPD in this case despite an admission that he did not review the vast majority of the police reports and discovery in this case provided by the Assistant District Attorney before somehow determining in his own mind that defendant was innocent.Following the hearing, the parties submitted post-hearing memoranda. The People also submitted a reply by letter.FINDINGS OF FACTErika King is a twenty-eight-year-old mother of two young children. She served in the Army/National Guard and received a bachelor’s degree in Psychology with a concentration in special education. She currently works as a behavioral and mental health counselor at a charter school in North Carolina.On May 10, 2014, at approximately 3:00 p.m., Ms. King attended a cookout at Roy Wilkins Park in Queens County and sat down on a bench in the basketball court to talk with her boyfriend. Within two minutes after arriving there, while her son’s uncle, Joel Rashko, was standing diagonally in front of her talking with a group of people, Ms. King heard someone yelling out, “What’s crackin’?” When she looked in the direction where the shouts came from, she saw a man with a black Mach-10 gun in his right hand, wearing a white t-shirt and a blue bandana covering the lower portion of his face underneath his nose. The man was approximately 75 feet away from her and she described him as a Black male with medium brown skin, approximately 5’10” tall with a stocky, but medium build. She recognized “What’s crackin’?” as a phrase used by member of the Crips gang. She knew this because Joel Rashko was a member of the Bloods gang. She knew that the Bloods gang members were known to wear the color red and the Crips gang members wore blue. The Crips and Bloods are known to be rival gangs.After yelling, “What’s crackin’?” the man began shooting. Ms. King heard between three and five gunshots at first and began running away from the basketball courts toward the back of the park. She had seen the shooter’s face when she had turned to look at him. Other than the blue bandana covering his mouth and the lower portion of his face, there was nothing else obstructing her view of his face. In fact, she had seen the gunman approximately five to fifteen minutes before the shooting, when she had passed him in the park on her way to the basketball courts. When she had first seen him, he was wearing a white t-shirt and army fatigue shorts. He was not wearing a blue bandana over his mouth at that time and she had seen his entire face. The shooter had the same physical build as the man she had seen earlier. She had taken notice of him earlier because he appeared to be lingering around and also had kept looking in her group’s direction.On August 11, 2014, at approximately 12:10 p.m., Ms. King viewed a photo array in the Queens County District Attorney’s Office. She recalls that two detectives — a male and a female — were sitting across the table from her.3 She recalls that when the male detective was reading the instructions to her,4 he appeared to be focusing on the bottom row.5 She signed her initials acknowledging that the instructions had been read to her. Thereafter, Det. Romance slid a manila folder containing the photo array across the table to Ms. King. Ms. King opened the folder and the detectives told her to take her time and choose wisely.6 Ms. King looked at the photo array, taking her time and looking at all of the photographs. She picked the defendant, depicted as number five in the photo array, and began to cry and rock back and forth because she recognized him from his eyes and nose as the shooter at the park. At that time, she was absolutely certain about her identification of the shooter. Detective Romance memorialized Ms. King’s answers on the photo array viewing report.After defendant’s arrest on July 30, 2014, defendant gave his home address as 179-60 Anderson Rd. in Queens County. That address is approximately six blocks away from Roy Wilkins Park. On that date, defendant told the detectives that he was 6’1” tall and weighed approximately 200 pounds.7On August 31, 2015, more than one year later, Ms. King viewed six additional photo arrays with Det. Kaalund from the Queens County District Attorney’s Office. She was read instructions prior to viewing the six photo arrays. Ultimately, Ms. King did not identify anyone in any of the six photo arrays. She recalled stating to Det. Kaalund at the time that she did not want to identify anyone if she was not one hundred percent sure, and that three people in the six photo arrays looked familiar because she must have seen them in the park the day of the shooting.8 She also told Det. Kaalund that she was sure that none of those people were the shooter because their build was too slim. Ms. King signed each of the six viewing reports.On October 12, 2017, sometime after 3:00 p.m., Manuel Gomez appeared at Ms. King’s job. He told Ms. King that he was a private investigator from New York. A Hispanic woman was with him and identified herself as well, but Ms. King did not recall her name.Ms. King asked Mr. Gomez if he was from the defense and he said, “No,”9 and showed her an identification or badge of some sort. Mr. Gomez told Ms. King that he wanted to go over the case with her and she took him and his assistant to her office.In Ms. King’s office, Mr. Gomez showed her a Newsday article from the internet that he retrieved on his phone titled, “Judge could dismiss murder charges against 4 men over police ballistics report.” The article, dated August 10, 2014, involved a mistrial in one of ADA Ross’s cases because of a Brady violation in which a police ballistics report had not been disclosed to the defense. Mr. Gomez told Ms. King that ADA Ross “could not be trusted” and was “known for railroading people.” After reading the article, Ms. King felt like she could not trust ADA Ross.In fact, however, on February 13, 2015, Judge Buchter had rendered a decision after a full hearing on the Brady violation and held that there was no misconduct on the part of the prosecutor or the NYPD and the case had not been dismissed. Mr. Gomez did not show Ms. King the court’s decision or tell her that the court had found there was no intentional misconduct on behalf of ADA Ross or the NYPD.Next, Mr. Gomez showed Ms. King some Google maps on his computer. He told Ms. King that the maps showing defendant’s cell phone/GPS location at the time of the murder in relation to the park proved that defendant was nowhere near the park at the time of the murder. He did not tell Ms. King how far away the cell phone/GPS locations on the maps were from the park and made no reference to where defendant physically was at the time of the murder in relation to the park.Mr. Gomez personalized defendant to Ms. King during the meeting by referring to him as, “AJ,” and attempted to influence her by telling her that the murder was not “AJ”‘s modus operandi, or “MO.” Ms. King did not ask him what he meant by that. In addition, Mr. Gomez showed Ms. King two photographs of defendant —-a full body shot and a photograph depicting defendant’s face (People’s Exh. 17). Ms. King told Mr. Gomez that she should could not make an identification from the facial picture. Mr. Gomez then showed her the full body photograph of defendant and when she made a comment about his build, Mr. Gomez told her it was an old picture and that defendant was not the same build as depicted in the photograph.10Mr. Gomez also showed Ms. King two videos of witnesses saying either they were with “AJ” or that they saw him on the corner at the time of the shooting. Mr. Gomez did not provide any context to these videos, however. Mr. Gomez did not tell Ms. King that these purported alibi witnesses lived on the same block as the defendant and were only recently discovered through the actions of the defendant and Mr. Gomez three and one-half years after the murder. Mr. Gomez also did not inform Ms. King that these witnesses had all had contact with the defendant during that three and one-half-year time period as well.In addition, Mr. Gomez falsely told Ms. King that no one else had been investigated for the murder and he had proof that one of the guys that she had mentioned looked familiar in one of the photo arrays — Omar Bryan — was the shooter and that he had fled to Barbados two days after the shooting. Ms. King had never heard the name Omar Bryan before and thought it would be suspicious if he had fled the country two days after the shooting. She then began to question whether she had identified the right person in the August 14, 2014 photo array. Other than the bald false statements that Omar Bryan was the shooter and had fled to Barbados two days after the shooting, Mr. Gomez did not show Ms. King any actual proof that Omar Bryan, in fact, was the shooter.11 Mr. Gomez showed Ms. King a picture of Omar Bryan, but rather than ask her if she recognized him, he told her that it was Omar Bryan in the picture and pointed out to her that he was wearing a white t-shirt as well. When Ms. King told Mr. Gomez that Omar Bryan did not have the same body build as the shooter, he told her that it was an old picture and he was heavier now. He also showed her a picture of Omar’s brother, telling Ms. King that she had picked out both Omar and his brother, Shamir, in the photo arrays and that he found that “interesting.” He also told Ms. King, without proof, that Shamir was at the park as well and that she may have picked both of them because they looked so much alike.By then, Mr. Gomez’s interview and statements had made Ms. King feel that she could not trust ADA Ross, that there was actual evidence that Omar Bryan was the shooter and the police had not investigated him,12 and she was no longer certain of her identification of defendant as the shooter. As a result, she did not want to testify at trial because she was no longer 100 percent sure of her identification.Mr. Gomez seized the moment and asked her to write out an affidavit, telling her that she would no longer be needed to testify in court after she wrote it. Mr. Gomez and his assistant were present the entire time she wrote the affidavit. As Ms. King wrote, Mr. Gomez would ask her to stop and read what she had written, then would tell her a sentence to add next. He also had her tell him what she would say next, rewording it and telling her what to write next. Looking over the affidavit that Ms. King wrote and signed, with assistance from Mr. Gomez, she acknowledged that there were portions of the affidavit that were not her words but rather the words Mr. Gomez had told her to write. She circled the portions of the affidavit that contained wording that Mr. Gomez had given her (People’s Exh. 18).After signing the affidavit, Mr. Gomez asked Ms. King to record a video statement and she agreed. Using his cell phone, Mr. Gomez asked her questions as he recorded her, coaching her from off-camera. Ms. King admitted that while most of the statement was true, portions were not her words and that in those instances, she said the words that Mr. Gomez told her to say because he had told her that she would not have to go back to New York to testify if she did so. Mr. Gomez did not ask her permission to put the video of her face and statements on television. He only told her that after she made the video statement, she would not have to come to court.Shortly after Mr. Gomez left, he called Ms. King in her office and told her that a reporter — Sarah Wallace — wanted to speak with her. The conversation was brief because Ms. King was leaving work, but Sarah Wallace asked Ms. King if she wanted to come to New York to meet with her and to be on television. Ms. King told her, “No,” and agreed to talk with her on the phone because she never wanted to ever come back to New York. Sarah Wallace asked Ms. King questions about herself and everything that had happened. Sarah Wallace never told Ms. King that their conversation was being recorded or that her video statement would be shown on television.But, on October 16, 2017, Sarah Wallace aired an NBC News 4 New York I-Team report on the case in which she attributed statements to Ms. King and, among other things, showed portions of Ms. King’s video statement that had been recorded by Mr. Gomez. Prior to testifying at the hearing, Ms. King had viewed the news report (People’s Exh. 15) and made several observations related to what Mr. Gomez had told her. She noticed that Omar Bryan was shown in the news report and observed that Omar Bryan, in fact, had the same build as he had in the picture Mr. Gomez had shown her. She then realized that Mr. Gomez had lied to her when he said that Omar Bryan was a lot heavier now than in the photograph. In fact, Ms. King also found several misleading portions of the news report that had been attributed to her. She never told Mr. Gomez or Sarah Wallace, with whom she had spoken on the phone, that she had been “steered” to identify someone in the photo array. Her statement that she “wasn’t 100 percent sure” referred to one of the men she had told Det. Kaalund that she might have seen in the park but was definitely not the shooter. In addition, Sarah Wallace’s statement that Ms. King had said that she had been threatened by the assistant district attorney was not presented in context. Ms. King had been afraid to testify at trial and had asked ADA Ross what would happen if she ignored a subpoena. Assistant District Attorney Ross had informed Ms. King that she could be arrested if she ignored a subpoena and at that time, Ms. King intended to testify voluntarily rather than be forced to appear pursuant to a material witness order. When Ms. King had told Mr. Gomez about this conversation, he told her that ADA Ross was lying to her to get her to come to court and testify. Ms. King believed him at that time because he told her he used to be a police officer and his statements to her at their meeting had caused her to distrust the prosecutor and the entire process.Prior to speaking with Mr. Gomez, Ms. King had not had any concerns about ADA Ross’s honesty and integrity in handling the case. Mr. Gomez did not offer Ms. King any money but offered to take her out to dinner. Ms. King declined, telling him that she was married.In addition to the so-called alibi videotaped statements that Mr. Gomez had obtained, shown to Ms. King and aired on NBC News 4 New York, he had also obtained several affidavits. On August 18, 2018, Mr. Gomez had taken written statements from Christian Hinton13 (People’s Exh. 29) and Kenya Turner14 (People’s Exh.30), who each claimed to have been present with defendant on the block where they lived within a few houses of each other,15 when they learned that someone had just gotten shot in the park. The call detail records relating to defendant’s cell phone showed that defendant had three cell phone calls with Kenya Turner that same day (People’s Exh. 39).Unique Branch16 also made a written statement to Mr. Gomez on August 18, 2017, claiming that he seen the shooting in the park and that Ajaya Neale was not the shooter (People’s Exh.31). The call detail records for defendant’s cell phone show that there were two cell phone contacts between defendant and Unique Branch that same day (People’s Exh. 40).On August 25, 2017, Mr. Gomez took written statements from both Deshaun Broomfield17 (People’s Exh. 32) and Ayrian Chang-Thomas18 (People’s Exh.33). DeShaun Broomfield indicated that he had seen defendant standing on the block when the shooting occurred. Ayrian Chang-Thomas stated that Det. Romance had told him that she knew defendant had not committed the murder and had asked him and DeShaun questions about the murder. The call detail records for defendant’s cell phone show that defendant had contact with both of these people that same day (People’s Exhs. 41 and 42).On August 26, 2017, Mr. Gomez obtained written statements from Tyrek Archer19 (People’s Exh. 34) and Dequan Tyndale20 (People’s Exh. 35). Tyrek Archer stated that he was 16 years old at the time and had seen the shooting. He described the shooter as “carmel Black,” “approximately 5’11″ to 6 feet” and with a “medium built body.” Cell phone call detail records show that defendant called Tyrek Archer two times that same day (People’s Exh. 43). Dequan Tyndale also claimed that he saw defendant on his block a few houses away at the time of the shooting. Cell phone call details show that defendant had contact with Tyndale three times that same day (People’s Exh. 44).Despite having been hired by defendant to investigate his case, there was no cell phone contact at all between Mr. Gomez and at least 6 out of the 7 witnesses from whom he obtained the above written statements, namely, Christian Hinton; Kenya Turner; Unique Branch; Ayrian Chang-Thomas; Tyrek Archer; or Dequan Tyndale.21 The cell phone call detail records for defendant’s cell phone account show numerous calls between defendant and Mr. Gomez, including on each of the dates that Mr. Gomez obtained the written statements from defendant’s alleged alibi witnesses. The call detail records also show multiple cell phone calls between defendant and Mr. Gomez on October 12, 2017 — the day Mr. Gomez spoke with Ms. King at her job, as well as in the days before and after meeting with her (People’s Exh. 45).Defendant’s CaseManuel Gomez is a former New York City police officer and currently a New York State licensed private investigator and owner of Black Ops Private Investigators. Mr. Gomez claimed not to recall whether numerous complaints had been filed against him in the nine months he spent assigned to the 43rd Precinct before he was transferred to the Property Clerk’s Division. He failed an integrity test there and, as a result, lost thirty days’ pay and was placed on probation for one year. He was subsequently transferred to building maintenance, where he claims that he drove a captain in Brooklyn. He was also disciplined for failing to follow an order at some point.Apparently, the NYPD fired Mr Gomez following his arrest in August 2009 for having “brandished his gun during the course of a violent off-duty dispute,” “point[ing] the firearm at civilians who were attempting to assist the victim,” “fail[ing] to comply with the responding police officers’ instructions,” and “resist[ing] arrest” (see Matter of Gomez v. Kelly, 139 AD3d 437 [1st Dept. 2016]). Thereafter Mr. Gomez sued the City of New York alleging several causes of action related to his termination. After his attorney in that matter stipulated to the dismissal of some of those causes of action, Mr. Gomez then claimed that his attorney had agreed to the dismissals without his consent. During a subsequent hearing with new counsel22 to determine whether defendant’s attorney had lacked the authority to enter into the stipulation of dismissal, the court found Mr. Gomez’s allegations to not be credible.23Mr. Gomez’s credibility was also found questionable in other instances, as well. The NYPD’s gun licensing division denied his December 2013, application for a New York City “carry business handgun license” because he had made false statements in his firearms license application, lacked good moral character, had been fired by the NYPD for cause based on disciplinary action for bad behavior numerous times, and had been arrested in August 2009. Mr. Gomez’s appeal thereafter was denied.24Two months later, when Mr. Gomez applied for a renewal of his private investigator’s license, he denied that he had been denied a license or permit (of any kind) since his previous application for a private investigator’s license.Currently, the New York State Department of Correctional Services has suspended Mr. Gomez’s privileges to enter into any state correctional facility, based on allegations that he violated the prohibition against bringing contraband into one of their facilities. The contraband at issue was a recording device.When questioned about failing to be candid on the private investigator’s license application about listing prior arrests, Mr. Gomez testified, “I have no arrests, thank you, other than a violation summons when I was 18, 19 years old.” In fact, Mr. Gomez had also been arrested for a domestic dispute with Janice Rivera in the Bronx on August 27, 2009. He is also currently subject to an order of protection issued in favor of Kelly Guarino with respect to allegations that he had strangled her and hit her in the lip. In that case, Mr. Gomez pled guilty under oath to Harassment in the Second Degree in Nassau County Criminal Court, although he claims that he lied when he pled guilty because he wanted to get the case over.Nevertheless, in August of 2017, defendant and his mother contacted Mr. Gomez to look for witnesses who had not been interviewed by the police and for new witnesses. He testified that defendant had told him that he was innocent and had been in front of his house and in the area with other people when the murder occurred. Initially, Mr. Gomez claimed that he never asked defendant for the names of any potential witnesses and did not recall whether defendant had told him the names of any witnesses. Mr. Gomez testified that there was a written retainer agreement that between defendant’s mother and himself, which they both had signed.25 According to Mr. Gomez, they paid him a flat fee of $6000.00 for his services. He denied that it was his standard practice to have a family member enter into the retainer agreement but acknowledged that his job was to look for evidence to help defendant’s case. He has frequent communications with defendant on his cell phone.On cross-examination, Mr. Gomez admitted that the job of a private investigator, as well as a detective, is to go wherever the evidence leads and not decide what is the truth. He also admitted that it is not his job as an investigator to decide whether someone is innocent. He indicated, however, that his investigative experience has enabled him to determine when people are lying, or not.He agreed that knowing the facts of the case and reviewing documents, witness statements and evidence is an important part of conducting an investigation. When he was first retained, he spoke with defendant but claims that defendant did not provide him with much information. Over the course of the investigation, he received more police documents and information from defendant and his former attorney, Victor Knapp. Although Mr. Gomez had received these documents and information, he admitted that the amount of information was voluminous and only reviewed “some” of the discovery material that had been provided to Mr. Knapp. He testified that he does not keep discovery documents and only turned over to the prosecutor documents and video statements that he generated. Mr. Gomez testified that he does not keep the documents because he does not want to be responsible for turning them over. He also testified that he does not take notes when he conducts an investigation. While he testified that he believed he had done a very thorough investigation, he claimed that he never saw the photo arrays that had been shown to Ms. King by Det. Kaalund. Despite the voluminous documents in the case, he also claimed that he was unaware that the murder was motivated by a gang dispute between the Crips and the Bloods. He never asked defendant if he was a gang member and claimed that he had not seen any evidence that defendant was a gang member.According to Mr. Gomez, he spoke with many people on Anderson Rd. in Queens during his investigation. On August 18, 2017, he interviewed Christian Hinton, Kenya Turner and Todd Archer, who lived across the street from defendant. These interviews took place in the dining room inside defendant’s house.26 He claimed that defendant was in another room when the interviews occurred. He also interviewed Unique Branch in his car that same day.Several days later, on August 25, 2017, Mr. Gomez interviewed Ayrian Chang-Thomas and Deshaun Broomfield. These interviews also took place inside defendant’s house.On August 25, 2017, Mr. Gomez interviewed Tyrek Archer on what appeared to be the porch of a house. He also interviewed Dequan Tyndale approximately one-half hour later inside of a Subway restaurant.He testified that after interviewing the witnesses, he had them write out and sign affidavits and then videotaped their statements. Ultimately, Mr. Gomez admitted that defendant had told him that he knew these witnesses from the neighborhood but claims that defendant hadn’t told him anything else.In September of 2017, Mr. Gomez was present in court during the Primo hearing, which had been held to determine the admissibility of purported third-party culpability evidence at trial that Omar Bryan was the shooter. Mr. Gomez had decided that Omar Bryan was the shooter, apparently based solely on claims by two of defendant’s friends, Melvin Anderson and Kalaef Turner. Mr. Gomez admitted that he had served a subpoena for Melvin Anderson and told him that he would be arrested if he failed to obey a court-ordered subpoena. Mr. Gomez had contacted Sarah Wallace from NBC News 4 New York and she was present during the hearing as well. Mr. Gomez claimed not to recall any of Omar Bryan’s testimony at the hearing concerning his cooperation with the Queens District Attorney’s Office in conducting an investigation that ultimately excluded him as the shooter. He also claimed not to recall the Court’s ruling that the defense evidence of third-party culpability was not sufficiently reliable to be admissible at trial. 27Mr. Gomez testified that he and his assistant, Carol Jimenez,28 went to North Carolina to interview the People’s eyewitness Erika King at her job as she was leaving work in approximately November 2017.29 Ms. Jimenez was present during the entirety of the time Mr. Gomez spent with Ms. King and Mr. Gomez testified that she had been present to be a witness to the interview to ensure that nothing improper occurred. Mr. Gomez claimed that he had identified himself as “Private Investigator Manuel Gomez, Black Ops” and Ms. King had told him that she did not want to “talk to white detectives” and started to walk away. According to Mr. Gomez, he got her attention by showing her a photograph of “a guy wearing a blue bandana”30 that covered all of his face except for his eyes, and she became emotional. He claimed that when he confronted her with a photograph of defendant and asked why she had identified him as the shooter, she took him to her office to talk.According to Mr. Gomez, he never tried to “coerce” Ms. King into giving a false statement. He denied showing her the article about the disclosure issues in one of ADA Ross’s cases. He denied telling Ms. King that Omar Bryan had left the country within days after the shooting but admitted telling her that the police had not investigated anyone else for the murder, despite having been present during the Primo hearing and possessing the documents detailing the investigation of Omar Bryan.He also claimed that her written affidavit was made entirely of her own words and that he had told her more than eight times that she had to be truthful. He denied telling Ms. King any specific words or statements to make in the affidavit and insisted that they were all her words. He also denied telling her that she would not have to testify in court if she gave him the written statement.Mr. Gomez denied that he had asked Ms. King if he could take her out to dinner.Mr. Gomez claimed that Ms. King knew that she would be on television because he had connected her with Sarah Wallace on a three-way phone call and the NBC News 4 New York camera man had filmed Sarah Wallace getting her consent. Mr. Gomez did not have this video recording.According to Mr. Gomez, he showed Ms. King only one photograph of defendant. The photograph that he showed her was the one depicted in People’s Exh. 17.CONCLUSIONS OF LAWA criminal defendant has the right under the Sixth Amendment of the Federal Constitution and article 1, §6 of the State Constitution, to confront the witnesses against him at trial (see Crawford v. Washington, 541 US 36 [2004]; Delaware v. Van Arsdall, 475 US 673, 678 [1986]; People v. Smart, 23 NY3d 213, 219 [2014]). This confrontation right is critical in an adversarial proceeding and to the due process right to a fair trial because the reliability of a witness’s testimony can only be ensured or established by rigorous testing through cross-examination before the fact finder (see People v. Smart, 23 NY3d at 219-20, citing People v. Wrotten, 14 NY3d 33, 39 [2009]). However, when the availability of a witness to testify is procured by a defendant’s misconduct, the defendant may forfeit his constitutional confrontation right and the unavailable witness’s grand jury testimony, which has not been tested through cross-examination, may be admitted at trial on the People’s direct case (People v. Geraci, 85 NY2d 359 [1995]; People v. Smart, 23 NY3d at 220).Thus, at a Sirois hearing, the People have the burden of proving by clear and convincing evidence that the witness’s unavailability is caused by the defendant’s misconduct, or misconduct that is attributable to the defendant (Matter of Holtzman v. Hellenbrand, 92 AD2d 405 [2d Dept 1983]). The misconduct may be in the form of threats, coercion, or chicanery either by the defendant, or the actions of others “with the defendant’s knowing acquiescence” (see People v. Geraci, 85 AD2d at 365). And “[b]ecause witness tampering is a surreptitious activity rarely admitted by the defendant or witness, few cases will involve direct evidence of the causal link between the defendant’s misconduct and the witness’s” unavailability (People v. Smart, 23 NY3d at 220). In those instances, the court may rely on circumstantial evidence and the sequence of events to infer the requisite causation from the evidence of the misconduct and the witness’s actions taken in direct response to that misconduct (People v. Smart, supra, citing, Matter of Holtzman v. Hellenbrand, 92 AD2d at 415; People v. Dubarry, 25 NY3d 161, 176 [2015] ).New York courts have recognized the functional unavailability of a witness even though the witness is physically available and willing to testify, but either recants their prior testimony, or indicates a refusal to testify at trial in a manner consistent with their prior accounts (see, eg, People v. Cotto, 92 NY2d 68 [1988] [refusal to identify at trial] ; People v. Geraci, 85 NY2d at 363-64 [refusal to testify at trial consistent with grand jury testimony]; People v. Turnquest, 35 Misc3d 329, 337-38 [Sup Ct, Queens Cty 2012] [recantation]).While the universe of case law in New York that addresses various scenarios presented in the context of a Sirois hearing is relatively small, there is no doubt, in light of recent public news stories publicizing the arrests of attorneys and investigators for witness tampering and other improprieties, that the integrity of the criminal justice system is being challenged and perverted by the actions of a few who will do whatever it takes to get a case dismissed or to win an acquittal. The public policy and purpose of the forfeiture exception to the right of confrontation is to reduce the incentive to tamper with witnesses and to punish those who are proven to have done so. In this case, the People have met their burden to establish by clear and convincing evidence that their witness, Erika King, is now unable to identify defendant in court as the shooter and is, therefore, functionally unavailable for Sirois hearing purposes as a result of the misconduct committed by defendant’s private investigator, Manuel Gomez, and that defendant either knew of, assisted or acquiesced in Mr. Gomez’s misconduct. Indeed, the evidence presented at the Sirois hearing, although largely circumstantial, was truly overwhelming.First, the hearing testimony and evidence established that Erika King had been an eyewitness to the murder and had identified defendant in a photo array as the shooter. She had, and currently has a detailed recollection of the events that day and had been confident that she had correctly identified defendant as the shooter. Indeed, when she was shown six additional photo arrays one year after the murder during the investigation of Omar Bryan as the shooter, she recognized the faces of both Omar Bryan and his brother, Shamir, as people that she must have seen while in New York but told Det. Kaalund that they definitely were not the shooter.Ms. King gave her testimony in the grand jury and defendant was indicted for the murder and related charges. Although the murder had happened during Ms. King’s first time in New York and had left her feeling as if she did not ever want to come back, she had been willing to obey a subpoena to return to testify at trial. Before meeting with Mr. Gomez, Ms. King had been certain that she had identified the right person.This Court credits Ms. King’s account of her meeting with Mr. Gomez in all pertinent aspects. Given that she had previously declined to speak to defense investigators, it would not have made sense for her to then speak with Mr. Gomez after asking him if he worked for the defense, unless he told her that he did not. It is apparent, therefore, that Mr. Gomez, in fact, misrepresented who he was and tricked Ms. King into speaking with him.During the interview, Mr. Gomez made false assertions to Ms. King that were clearly designed to malign the prosecutor in her eyes, make her believe that the NYPD had not investigated the case and lead her to believe that she had not identified the right person as the shooter, with the goal of eliminating her as an identifying witness at defendant’s trial. Mr. Gomez mislead Ms. King by offering Google maps photos that he claimed showed that defendant was nowhere near the park when the shooting occurred when, in fact, the photos may merely have showed the general location of defendant’s cell phone. He made knowingly false statements to the effect that Omar Bryan was the shooter and had fled the country within a few days after the murder, despite having sat through the Primo hearing during which there was ample evidence that Omar Bryan had been investigated, excluded as the shooter, and had not left the country immediately after the murder. He even showed Ms. King a photograph of Omar Bryan, and then lied about his actual appearance when she told him that his build was different from the shooter’s. Using his cell phone, he showed Ms. King an article about another of ADA Ross’s cases, falsely telling her that the prosecutor had a history of railroading people. Indeed, Ms. King would not have known about such an article unless he showed it to her. He showed Ms. King the videotaped statements of defendant’s alleged alibi witnesses but did not tell her that the witnesses were the defendant’s friends, several of whom lived on the same block within doors of defendant’s house and that they had only been discovered as purported alibi witnesses through the actions of defendant and Mr. Gomez more than three and one-half years after the murder.Indeed, it was not until Manuel Gomez ambushed Ms. King at her job, lied to her about who he was, and fed her false information that she no longer had confidence in her identification of defendant as the shooter and her confidence in ADA Ross’s integrity had been eroded. Given that defendant’s trial had been scheduled to begin October 17, 2017, the timing of Mr. Gomez’s shenanigans — all made public during the October 16, 2017 I-Team news report, and the outrageousness of what he did to Ms. King belies his true intent. This was not a true investigation; rather, Mr. Gomez’s intent was to eliminate Ms. King as the sole identifying witness and derail the trial which he definitely accomplished. After meeting with Mr. Gomez, hearing his false and misleading statements and seeing the videotaped statements of the alleged alibi witnesses, Ms. King was no longer confident in her identification, believing that no one else had been investigated, and made a videotaped statement and signed an affidavit claiming to have been urged to pick the wrong person, coerced and victimized by the prosecution. Mr. Gomez even went so far as to tell Ms. King that ADA Ross had lied to her about the consequences of ignoring a subpoena to testify in court, despite knowing full well that an arrest would be possible.31 Although she has come to learn that Mr. Gomez had deceived her, his trickery at that time confused her, and has rendered her unable to confidently identify defendant in court as the shooter. She is, therefore, functionally unavailable in the context of this Sirois hearing (see People v. Cotto, 92 NY2d at 73 [although witness was physically available to testify, witness testified that he could not identify the shooter]).Clearly, the functional unavailability of Ms. King is a direct result of Mr. Gomez’s deception and misleading tactics. Although Mr. Gomez conceded on cross-examination that a private investigator must review all of the documents, police reports, crime scene pictures, witness statements and anything else that is relevant to the case in order to do a thorough investigation, in this case, Mr. Gomez reviewed a mere fraction of the more than 11,000 documents covering all aspects of the police investigation and the case. In fact, he only admits to seeing the photo arrays or documents that he has used to press his false narrative of police and prosecutorial coercion and corruption.Mr. Gomez’s testimony on the witness stand was deliberately evasive and reflective of outright incompetence in regard to his investigative techniques and the sources of the information he supposedly gathered. He stated, “Maybe I did; maybe I didn’t,” or “If it says that, then that’s what it is,” or simply, “I don’t recall.” The haziness of his recollection on anything that does not fit within his agenda is, in part, because of Mr. Gomez’s disclosure that other than videotape statements of witnesses or written affidavits, he takes no notes whatsoever. The effect is that he has little to no verifiable information or memory of the source or basis of investigative information that he comes across and testified that he does that deliberately, so that he does not have to turn over anything in court.Mr. Gomez claimed that defendant’s prior attorney, Victor Knapp — who has been working in the Queens Supreme Court system for well over 40 years and is considered in all respects a professional, competent, experienced attorney with a stellar reputation — was not helpful and did not provide him with much information until the end. How, then, can it be believed that Mr. Gomez somehow conducted a thorough investigation into a three-year-old murder case without any assistance from the defense attorney and without reviewing the documents and evidence? It is simply not believable.Indeed, throughout the first three-year pendency of this case, there was never an allegation or any notice that there were physical alibi witnesses. In fact, the only semblance of an alibi advanced by Mr. Knapp was in the form of GPS logs, purportedly from defendant’s cell phone, which appeared to indicate that his cell phone was in a location other than at the place of the murder. Nevertheless, Mr. Gomez, retained without Mr. Knapp’s knowledge and, in an extremely short period of time, suddenly “discovered” several alibi witnesses. This Court was even more shocked when it learned that these so-called alibi witnesses, who claim that on the date and time of the incident the defendant was on the same block where they lived and they all live on the same block as the defendant–some of them within doors of his own residence. The videotaped statements of each of these witnesses were recorded in the defendant’s own home by Mr. Gomez, who secured the affidavits and videotaped witnesses one after the other. The cell phone records that the People entered in evidence showed multiple cellphone calls between defendant and most of those witnesses on the dates of their interviews, but not between those witnesses and Mr. Gomez. Thus, it is simply not believable that these witnesses were located by the efforts of Mr. Gomez, as opposed to being directed to him by the defendant, their friend and neighbor.This Court believes Mr. Gomez’s so-called “investigation” was nothing but a sham; a ruse to attack the NYPD and ADA Ross to bring attention and notoriety to himself, his business and his agenda, which was reflected in many of his outbursts during the hearing.Indeed, Mr. Knapp asked to be relieved from representing defendant for ethical reasons after the sudden production of these so-called alibi witnesses and the Sarah Wallace news clips about the case. This Court knows of no other instance where a privately retained attorney has asked to be removed from a case because his continued involvement in the case in light of the actions of his client and the private investigator has caused him to believe that he may be violating his ethical obligations as an attorney.The credible hearing testimony and evidence, therefore, established that Mr. Gomez, in fact, engaged in misconduct in his contact with Ms. King and was the direct cause of her becoming functionally unavailable to identify defendant at trial in the manner she did during her prior grand jury testimony. The evidence clearly showed that Mr. Gomez visited Ms. King in North Carolina not to hear her side or to further investigate the case, but to deceive and mislead her, turn her and disqualify her as a witness in the upcoming trial. And if tampering with the witness and derailing the case was not enough, the major parts of Mr. Gomez’s distorted work ultimately were wrapped in a nice neat package and aired by Sarah Wallace during her News 4 New York investigative news show, just one day before jury selection was to commence.Finally, the circumstances surrounding the hiring of Mr. Gomez and his misconduct all support the inference that defendant knew what Mr. Gomez was doing, assisted him and acquiesced in it because it was for his benefit — attempting to get his case dismissed for lack of an identification witness. Normally, a defense attorney hires a private investigator to assist with a case. This is usually so because the attorney and the private investigator will have formed a bond of trust and understanding over time that provides them with a unique professional relationship when working for the best interests of the client. This is particularly true in criminal cases because much of the evidence in the case comes from the prosecutor during the discovery process. The private investigator then works with the defense attorney to explore options for strategy and investigation methods. They discuss and review the charges, the facts and all of the available evidence, including police reports, photographs, video, scientific evidence and written statements by all witnesses, including the defendant. Armed with this information, the private investigator then looks for “gaps” or inconsistencies in the evidence to assist with finding any available evidence that is consistent with the defense strategy, as determined by the defense attorney.Here, Mr. Gomez was hired, not by Mr. Knapp, defendant’s prior attorney, but purportedly by the defendant’s mother for the sole purpose of having him locate witnesses that were not interviewed by the prosecution and any other witnesses. Mr. Gomez claims to have been hired sometime in the month of August in 2017 and claims that other than the stated purpose, the defendant never asked him to undertake any task regarding the investigation. To be clear, the Court does not credit Mr. Gomez’s testimony regarding who hired him. This Court requested that Mr. Gomez produce the retainer agreement on at least four occasions over a two-month period, including through a court-ordered subpoena duces tecum, and Mr. Gomez failed to do so. Even after Mr. Gomez testified that the defendant’s mother paid him $6000.00 and they both signed a written retainer agreement, he still only produced a typed document that does not bear any signatures. Mr. Gomez conceded, however, that he was obtaining “evidence” for the defendant. Indeed, the cell phone records show hundreds of calls between defendant and Mr. Gomez during the times relevant to this hearing. Defendant was in contact by cell phone with at least six out the seven alleged alibi and other witnesses on the days when they gave written and videotaped statements to Mr. Gomez. In fact, most of their statements were taken at defendant’s home with defendant present in the house. Mr. Gomez, however, was not in contact with the witnesses by cell phone. Defendant was even in frequent contact with Mr. Gomez in the days before and after the Erika King interview, as well as that same day. It would be naïve to believe that during these numerous phone calls while he was in North Carolina, he did not tell defendant exactly what he was doing.In addition, the fact that defendant brought on Mr. Gomez as his private investigator without any input from his then-attorney, Mr. Knapp, and did not tell his attorney speaks to the intention behind his doing so. The fact that Mr. Knapp asked to be relieved largely for ethical reasons after learning that Mr. Gomez was working for the defendant and had somehow produced several purported alibi witnesses is a good indication of why defendant did not tell Mr. Knapp or include him in whatever Mr. Gomez was doing for his defense in the first instance. What actually transpired suggests that defendant knew that Mr. Gomez would do whatever was required, whereas Mr. Knapp would not go beyond his ethical limitations.The hearing evidence also showed that defendant played a substantial part in helping Mr. Gomez construct the videotaped statements he showed to Ms. King, by directing him to individuals — his friends and neighbors — who were willing to say that defendant was on the block with them when the murder occurred, or some other story meant to exonerate defendant. The veracity of these statements and legitimacy of the witnesses is questionable, at best, given their relationship with the defendant, proximity to his home and failure to come forward in the three and one-half years since defendant’s arrest. Indeed, the pattern of cell phone contact between defendant and his alleged alibi witnesses, and defendant and Mr. Gomez when he interviewed Ms. King, do not reflect an independent investigation and course of action by Mr. Gomez, but rather, a concerted course of conduct and action in which defendant provided dubious witnesses for Mr. Gomez to use to persuade Ms. King to believe that she may have identified an innocent man.Considering the circumstances surrounding the hiring of Mr. Gomez, defendant’s almost constant communication with Mr. Gomez on his cell phone, and the causal link between much of the “evidence” Mr. Gomez used to confuse and mislead Ms. King and the defendant, the only reasonable inference to be drawn is that defendant knew exactly what Mr. Gomez was doing such that the misconduct of Mr. Gomez is directly attributable to defendant, as well. Although there are no Sirois hearing cases cited in New York that involve the misconduct of a defendant’s private investigator, the substantial and overwhelming Sirois hearing evidence in this case, as well as public policy to protect the integrity of the adversarial process by preventing a person from obtaining an advantage from his own wrong (see People v. Geraci, 85 NY2d at 366), support the extension of liability for the misconduct of the private investigator in this case to the defendant.Accordingly, the People have met their burden of establishing by clear and convincing evidence that Mr. Gomez’s misconduct was known about, assisted and acquiesced in by the defendant, and that misconduct caused Ms. Erika King to no longer be able to identify defendant as the shooter, rendering her unavailable in the context of this hearing. Therefore, the People will be permitted to introduce in evidence at trial Ms. King’s grand jury testimony and defendant is precluded from objecting to the admission of that prior testimony on confrontation clause or hearsay grounds. The defense will also be precluded from using for impeachment purposes any of the statements that Mr. Gomez obtained from Ms. King through his misconduct. Under the circumstances, to allow evidence of those prior inconsistent statements would open the door to the manner in which the statements were obtained and would be nothing more than a distraction at trial. In any event, given the impropriety in how the statements were obtained, they’re admission would be more prejudicial than probative of Ms. King’s credibility.Re-opened Wade hearingThe sole basis for re-opening the hearing was to determine whether there was any undue suggestiveness in the way that the detectives conducted the August 11, 2014 photo array with Ms. King. Ms King testified that a male and a female detective were seated across the table from her at the time. Although her recollection was that the male detective read the photo array instructions to her, Det. Romance testified that she, in fact, was the detective who read the instructions to Ms. King. Ms. King testified that from her perspective, she thought that the detective’s eyes were focused on the bottom of the paper when reading the instructions but could not tell if he was looking at any particular person. She also testified that the photo array was taken out of a manila folder and given to her after the instructions were completed. Ms. King testified that she looked at all of the photographs before identifying the person she recognized as the shooter.Under the circumstances, there is no basis for this Court to conclude that Ms. King’s identification of defendant was the product of any undue suggestion by the police. Even assuming that she believed one of the detectives was looking at the bottom row of the page, she affirmatively testified that there was no focus on any one particular person and that she looked at all of the photographs before making a selection (see People v. Killimayer, 40 AD3d 1118, 1119 [2d Dept 2007], quoting People v. Mack, 243 AD2d 731 [2d Dept 1997]). Accordingly, the motion to suppress identification testimony is denied.Finally, although normally, evidence of a pretrial photographic identification would not be admissible, this Court finds that “the maxim that the law will not allow a person to take advantage of his own wrong” should apply in equal force to the photo array evidence in this case. In People v. Perkins (15 NY3d 200 [2010]), the Court of Appeals, relying on a Sirois decision in People v. Geraci (85 NY2d 359, 366), affirmed a trial court’s ruling that the defendant, who had refused to cooperate in a lineup, had forfeited the right to rely on evidentiary rules that ordinarily barred the admission of photographic identification evidence. Since the misconduct in this case has thwarted the ability for an in-court identification to occur, this Court sees no logical or rational distinction between the facts in People v. Perkins, and this case. Accordingly, since Ms. King has been rendered unable to make an identification at trial as a result of misconduct attributable to the defense, the Court finds that the People are also entitled to the additional remedy of permitting evidence of Ms. King’s pretrial identification of defendant in a photo array.Order entered accordingly.The clerk of the court is directed to forward a copy of this order to the attorney for the defendant and to the District Attorney.
