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People v. Victor Santiago Criminal Term, Part 33 Justice Atlas People v. Victor Santiago – The defendant is charged with Aggravated Criminal Contempt and two counts of Criminal Contempt in the First Degree based on Angela R.’s As a general rule, the Grand Jury testimony and out of court statements of an unavailable witness are inadmissible as evidence in chief. However, our courts have adopted certain exceptions to this rule when the People can prove, by clear and convincing evidence, that the defendant procured the witness’s unavailability through violence, threats or chicanery. (Matter of Holtzman v. Hellenbrand, 92 AD2d 405 [2d Dep't. 1983]). If the defendant’s misconduct is proved, sound public policy demands the defendant forfeit the assertion of his constitutional right of confrontation and the protection of such evidentiary rules which would otherwise preclude the admission of hearsay declarations. (People v. Cotto, 92 N.Y.2d 68 [1998], denial of Habeus Corpus rev’d on other grounds sub nom. Cotto v. Herbert, __ F3d __, 2003 WL 1989700 (2nd Cir. May 1, 2003); People v. Geraci, 85 N.Y.2d 359 [1995]). This rule is invoked to “[protect] the integrity of the adversary process by deterring litigants from acting on strong incentives to prevent the testimony of an adverse witness.” (People v. Geraci, supra, quoting Steele v. Taylor, 684 F2d 1193, 1202 [6th Cir.1982]). In this case, the People’s papers demonstrated a distinct possibility that the defendant engaged in witness tampering. Such a showing mandated a Sirois In Geraci, the witness’s unavailability was procured through threats which led the witness to abscond rather than testify. In Cotto, the witness’s unavailability was also procured through threats, but rather than absconding, the physically available witness suddenly “forgot” the information earlier reported to the police and District Attorney. In this case, the complaining witness has sometimes declared that she will be unavailable for trial because she will not respond to a subpoena. At other times she has threatened that if she is called as a witness she will deny all the fundamental facts that she asserted as true when she testified in the Grand Jury and spoke with the police and prosecutor. This behavior by a witness also makes the witness unavailable because it denies the prosecution the opportunity to offer the complainant’s incriminating testimony at trial. Assuming such deliberately false and material testimony was induced by the defendant’s misconduct, the court may admit earlier incriminating statements of the witness as direct evidence during the People’s case even though the witness is physically available to the court. (People v. Cotto, supra). It is clear that the People’s use of the Geraci exception in the circumstances of this case, while unusual, may affect the prosecution of similar cases involving domestic violence and violations of orders of protection. In that sense, given the frequency with which battered women seek to withdraw as witnesses, if the witness’s earlier statements become admissible according to the Geraci and Cotto standards, considerable public benefit can be anticipated. At the Sirois hearing I heard testimony from the People’s witnesses: the complainant Angela R., the Grand Jury stenographer in this case, Domestic Violence Counselor Nelida Vasquez, Police Officer Geneva Eleutice, Assistant District Attorney Christopher Hill, and Dr. Ann Wolbert Burgess, who is an expert in domestic violence and Battered Women’s Syndrome. The defendant, Victor Santiago, also testified. Much of what the complainant and the defendant said during their testimony was patently incredible. On the other hand, the testimony of the remaining witnesses was believable and, in some instances, beyond dispute. Domestic Violence andBattered Women’s Syndrome Dr. Ann Wolbert Burgess is an expert in the field of relationship violence and domestic violence. She has testified many times in State and Federal courts, in criminal and civil matters, as an expert in domestic violence and “Battered Women’s Syndrome.” At the Sirois hearing, Dr. Burgess’s testimony was based upon her own experiences in counseling battered women, as well as widely accepted studies on domestic violence which support her conclusions. Dr. Burgess testified that domestic violence is an intentional injurious act committed by one partner against the other within an intimate relationship. The act of abuse can be physical, sexual, financial, emotional, or psychological. According to Dr. Burgess, Battered Women’s Syndrome describes the behavioral pattern of an abused person and explains the actions of the abused person. Dr. Burgess testified that domestic violence is part of the effort by one partner to dominate and control the other so that the dominant partner can experience a sense of power. In approximately 90 percent of the reported cases the batterer is male and the battered person is female. The tension building phase is one of conflict, often arising from an aggravating situation or a simple disagreement. It is followed by the violent phase which consists of either physically abusive acts, or other acts designed to hurt the woman in indirect ways. The violent phase is followed by the honeymoon phase, which is characterized by acts of contrition by the abuser, his requests for forgiveness and his declarations of love. The duration, intensity and frequency of these cycles can vary, and are sometimes dependent on external aggravating factors. According to Dr. Burgess, battered women who become victims of Battered Women’s Syndrome suffer from low self-esteem and a sense of helplessness characterized by the inability to speak up for or defend themselves, and are emotionally dependent on the abuser. The battered woman often fears for her life, or at least that she will be subjected to further intense violence, or that her children will be abused. The battered woman also fears separation, does not want to be alone, and often does not want the relationship to end because, despite the violence, she loves the partner who is battering her and she maintains the false hope that the violence will end. The batterer, concerned with maintaining control over the battered person, does not want the partners to separate either. The batterer maintains control by the use of threats and beatings, as well as by acts which isolate the battered partner and deny her access to social support and agencies that could assist her. Often, batterers isolate their partners by sabotaging their plans to go out alone, or by interfering in other relationships that the woman may wish to establish. Battered women are often controlled financially by the batterer who may withhold money in order to make her more dependent upon him. Moreover, the battered woman can be controlled psychologically by the batterer humiliating and demeaning her, and making her feel unworthy and unattractive to others. According to Dr. Burgess, research shows that such psychological abuse is a frequent occurrence in abusive relationships and is the most devious and insidious type of abuse. Dr. Burgess testified that batterers also exploit the partner’s feelings of guilt by blaming her for their problems and by insinuating that their difficulties are all her fault because she incited the conflict that led to the battering. The batterer also uses other acts designed to undermine the woman’s confidence in herself, acts which can be as simple as a particular look that signals the controlling partner’s displeasure, or as overt as hurting pets or deliberately destroying things that are important to the woman. Dr. Burgess’s testimony revealed that there are many reported abusive relationships in which, while there is no physical abuse to the partner, there is the same pattern of emotional dependence, low self esteem and learned helplessness brought about by other means. Dr. Burgess’s experiences and studies of battered women show that it is very common for women to tolerate abuse and not seek help because they are too ashamed and humiliated to reveal their plight and accept assistance. Often, battered women simply do not want their friends or family to know what they have endured. Dr. Burgess noted that the presence of children in the home becomes another complicating factor in these relationships. The child becomes a means of leverage used by the batterer as he seeks to convince the battered partner that she cannot maintain a home for the child without the batterer’s presence and assistance. Studies also show that it is common for battered women, fearful that their children may be abused, to take further abuse simply to shield their children. Dr. Burgess testified that battered women only seek the help of the police when they are in acute distress, terrified, and afraid for their lives. She noted that many battered women call the police because they know that the police must come to their aid, and that when they arrive they will defuse the situation. Dr. Burgess testified, however, that it is also very common for battered women to recant their allegations and not go forward with prosecution, often taking blame for the battering or otherwise rationalizing it away. Dr. Burgess pointed to studies which show that battered women often report and then recant their allegations as many as seven times or more before they are able to follow through with a prosecution and testify against their batterer. One reason for this is that the batterer has, with considerable persistence and generally in violation of an order of protection, contacted the complainant, apologized to her for his behavior, expressed his love for her and promised that his abusive acts will never happen again. During this honeymoon phase, the batterer’s promises and expressions of love exploit the complainant’s fantasies of happiness and harmony and her hope that, notwithstanding previous abuse, a loving relationship can and will continue. He relies on her belief that they have worked out their problems, they will not have to separate, and she will finally get the support that she really longs for. Thus, apart from the implicit threat of physical abuse, a batterer often keeps his victim from testifying by the subtle threat that if she does not withdraw her complaint, she will destroy any chance of achieving an harmonious relationship with him. Dr. Burgess notes that the batterer, faced with the threat of a criminal prosecution and jail time, is himself under great pressure to get the complainant to end the prosecution. In turn, he puts tremendous pressure on the complainant to drop the charges and not go forward. The strategy frequently employed by the batterer is to promise that everything will get better if the woman just doesn’t get the man into any more trouble with the authorities. This approach exploits the woman’s sense of guilt, effectively turning the tables by putting the onus on her for their problems. Additionally, when the batterer is incarcerated pending trial he poses no immediate physical threat to the complainant. According to Dr. Burgess, the less immediately threatening the batterer is, the more malleable the battered woman becomes. Thus, in this honeymoon phase the batterer’s expressions of love and promises for a good future are more easily accepted by a physically safe complainant. Angela R. and Victor Santiago’s Relationship At the hearing, Angela R. testified that she and the defendant are married by common-law and by love, and have been living together, as she put it, for “ten beautiful years.” During her testimony, Angela R. professed to being a religious person with a deep faith in God. When confronted with the many reports of abuse she filed against the defendant she testified that all of them were false, notwithstanding the fact that she admitted to having written and/or signed them. Throughout the course of her brief testimony, when challenged about these discrepancies, Angela R. answered the prosecutor’s questions: “I don’t remember,” “I don’t recall,” “No, I did not,” “I do not understand,” and “I do not know” over 100 times. As the record bears out, she often responded so inconsistently as to be virtually irrational, all the while nervously watching the defendant for his approval, as he blew kisses to her from his seat at counsel table. Angela R. claimed that in March 1996, she discovered that the defendant fathered a child by another woman and that for six years thereafter she filed various charges against the defendant solely because she is “making him pay for that.” Angela R. testified that she has been jealous and becomes violent with the defendant when he wants to leave her. She testified that since she now has a child of her own, she is no longer hurt by his infidelity. Nonetheless, she still wants to punish him. During her testimony she made the strange claim that she fabricates stories of abuse to get Orders of Protection which are designed to prevent him from living with her because she does not want him to leave her. The defendant testified that he and Angela R. are husband and wife, lovers and the best of friends, who celebrate every day they are together like a “special holiday.” He testified, however, that a few years ago Angela R. discovered that he had a child with another woman and she became controlling and demanding. He claimed that when she didn’t get what she wanted, she would “snap,” hit and abuse him, and then go to the police and lie to them. In fact, he contends that it is she who always hits him and he has never hit her. The defendant testified that “she’s a physical person,” but he is “a forgiving kind of guy.” The defendant further explained that his infidelity took place approximately ten years ago, at a time when he and Angela R. had broken up. The woman with whom he had this brief affair fled to California when she was pregnant, without ever telling the defendant that she was pregnant or that she was leaving. The defendant testified that over the years he has had virtually nothing to do with this other woman or their child. According to the defendant he has no knowledge of their whereabouts and is completely out of touch with them. January 1996 On January 30, 1996, the Police were first drawn into the defendant’s relationship with Angela R. when she called in a harassment complaint. The Domestic Incident Report filed by the responding officer lists the defendant as Angela R.’s ex-boyfriend and notes that she “refuses to get an Order of Protection.” The signed statement in Angela R.’s handwriting reads: “I Angela R. stating that Victor Santiago has been harassing me, like banging on my apartment door and making threats to me about a week he also hit me on my face.” (Sic.) Regarding the January 30, 1996 harassment complaint, which obviously pre-dated any claimed discovery of infidelity by the defendant, Angela R. testified that she told the police that the defendant threatened her and hit her, but, she continued: “Yes. I made that statement. Did he hurt me? Did he physically put his hands on me? No . . . I lied.” March 1996 On March 17, 1996, in response to another call, Police Officer Eleutice testified that she and a number of other officers climbed to Angela R.’s fifth floor apartment and, while outside, heard a female screaming for help. They sought entry but were denied it. She and Sergeant Smith went back downstairs. Smith climbed the fire escape to look inside the apartment and he yelled down that he saw a male on top of a female struggling on the floor. The officers returned upstairs to the fifth floor where Sergeant Smith and Police Officer Zaccari broke down the door to gain access to the apartment. The many officers then on the scene rushed into the apartment and had to break down a second door to get to the defendant and Angela R.. It took four officers to pry the defendant off of the complainant, and even then the defendant continued kicking and spitting. The defendant was so violent that an Emergency Services team was called in to assist in restraining him. Officer Eleutice took Angela R. into another room. She described Angela R. as crying and disheveled, with “messy” hair. When asked what happened, Angela R. told Officer Eleutice that, as she and the defendant walked up the stairs, they began to argue on the first floor. The defendant then dragged her by her hair up to the fifth floor, got her into the apartment and began choking her. Officer Zaccari’s Domestic Incident Report lists the defendant as Angela R.’s boyfriend and reads: “At T/P/O C/W states that Deft. did grab & lift her up & throw her onto the staircase C/W fled & Deft. followed her inside her apt. & proceeded to strike her about the face causing redness, swelling & substantial pain. Deft. refused to let C/W leave apt. A/O heard the Deft. state I’m going to “fucking kill you” & C/W yelling help me several times A/O & other officers gained access to apt. to find Deft. on top of C/W.” (Sic.) The report also notes that the complainant was taken to St. Luke’s hospital. The legible portion of Angela R.’s medical records from St. Luke’s reads: “Escorted by NYPD/EMS, tearful stating ‘I’m OK. I want to go home.’ stated had argument last pm, ‘he throw me to stairway, pick me up.’ bruises to R.” (Sic.) The anatomical drawing portion of the chart, where the location of injuries are supposed to be indicated, is not filled out. Rather there is a notation that “Pt. refuses to give Info.” The patient complaint boxes read “Emotional/DV” Regarding this March 17, 1996 incident Angela R. testified that she did not tell the police or the hospital staff any of the things attributed to her in their reports, and in fact, it was she who was hitting the defendant. Regarding this same incident, the defendant testified that he is at a loss to explain what happened on that date because, according to him, one minute he and Angela were just walking to her building and the next minute she attacked him, knocked him to the ground and then he was dripping with blood. The next thing he recalled was that they were in the apartment and she was hitting him. At that point, he blacked out. He testified that he did not know what caused this attack, but he thinks it was a jealous rage. The defendant claimed that the only time that he saw the police was when he woke up in the hospital handcuffed to the bed. He does not remember telling the doctors that he was depressed because of relationship difficulties and financial problems, and that he wanted to call Angela to apologize. These statements were recorded by the hospital staff in the defendant’s hospital record as having been made by the defendant.. The defendant was arrested for Assault in the Third Degree, Unlawful Imprisonment in the Second Degree, and Resisting Arrest. Initially, Angela R. cooperated in the prosecution of the case, but when it was trial ready, she refused to go forward and the case was dismissed. December 1996 On December 1, 1996, Angela R. filed another Domestic Incident Report at the 24th Precinct. It lists the defendant as “common-law husband” and the signed statement in Angela R.’s handwriting reads: “I Angela R. got into an argument with Victor Santiago cause he wanted to play music loud at 3am I ask him to please turn the music down he just went on talking loud so I went to bed he came in grab his coat then went in the bathroom and grab a hand towel and set it on fire came over to the bed said he’ll burn me and the apt. I grab the towel and put it off.” (Sic.) The officer’s portion of the form reiterates this and adds: “Compl. had visible burns on her left hand and was visibly shaken and fearsome that common-law husband had returned.” (Sic.) The form shows that the defendant was arrested for Assault in the Second Degree and Reckless Endangerment, however, the case was dismissed when Angela R. refused to testify for the prosecution. Regarding this incident, Angela R. testified that she did write and sign the Domestic Incident Report, but she never told the police any of the things in the report. Rather she was angry at the defendant and wanted to hurt him, so she put ashes on her hand, which was not really burned, went to the precinct and lied to the police. Regarding this same incident, the defendant testified that Angela had a premonition that if the defendant went out, something bad would happen to him. She was “on her period,” had a backache, and when he tried to leave, she jumped on him and attacked him. He fled the apartment so that he wouldn’t get hit anymore. He testified that nothing was ever on fire in the apartment. The Domestic Violence Log Nelida Vasquez was the domestic violence counselor at the 24th Precinct from October1996 until April 2001. She testified that over the course of her tenure at the 24th precinct, she, Police Officer Eleutice, and other officers contacted Angela R. on many occasions because they were aware of the domestic crisis in Angela R.’s home. Ms. Vasquez was first alerted to the problem by a special list kept at the precinct known as the “High Propensity for Recurrence of Domestic Violence” list. After the December 1st incident, Ms. Vasquez began a log, called a “Domestic Violence Cover Sheet,” documenting the many attempts at intervention directed toward this particular complainant. The log shows that a letter was sent to Angela R. on December 3, 1996, and she was called on December 4, 1996. The next entry in the log reads: 7-22-97 C/W states that she has had no further contact w/ perp. No need for services this time. (Sic.) June 2000 On June 21, 2000, Angela R. filed another Domestic Incident Report in the 24th Precinct. It lists her relationship with the defendant as “child in common” and the signed statement in Angela R.’s handwriting reads: “Victor Santiago and I Angela have been having promble. I have been asking him to please leave and to just stay away today June 21/00 early this morning I am asking him to please get up and go to work he hit me all over my face and neck.” (Sic.) Regarding the June 21, 2000 incident Angela R. testified that she wrote and signed the Domestic Incident Report but she never told the police any of the things contained in the report. Angela R. also testified that when she woke the defendant to go to work, he was thankful because he didn’t want to be late, but thereafter she went to the police “out of desperation” to get even with him. Thereafter, the Domestic Violence Cover Sheet records the following entries: 7-8-00 -called-no answer-slated for FUI 8-23-00 -Angela stated “all is well”-also stated they are counseling each other – we discuss consequences if child were present (which she has not)-we gave her material asked her to call us. 8-25-00 -Angela called – left message-Called Angela back – she stated that she needed to talk – made appt. 8-30-00 -Angela called-could not make appt. -but stated she needed to talk -would call back and make new appt. – I asked her to call if she needed to before appt. 9-27-00 -Angela called – perp is continuing abuse – she is scare to do something because he has threatened her if she seeks help. I made appt. for tomorrow afternoon. 9-29-00 -Angela called – was crying – could not come in – wanted to talk – she decided she would go for OOP 10-4-00 -Angela called – was crying-stated she could not take it anymore she was upset her husband was accusing her blaming her for unfounded reasons-we discussed her options again (SH family court, shelter placement, gave her Hot Line #) asked her to call me later. 10-5-00 -Angela came in – was crying – baby’s father had discharged baby from hospital – out but not come home – she asked me call family members to check on perp whereabouts – CD up to SH Family Court.-Called her sister-in-law Carmen xxx-xxx-xxxx 10-4-00 -Victor called -had child home & Angela too had arrived. 10-6-00 -Called Angela – is going to Family Court on Tues. -we discussed.-Called 800 Hot Line for info/details of Angela’s case – (she’s afraid of perp after she serves OOP)-Called Angela – gave her Hot Line info – asked her to call Jessica-Victor called – wanted to come in to discuss his side of the situation – we discussed his options and consequences. 10-11-00 -Called Angela-husband answered – I left message. 10-19-00 -Called Angela – perp had decided to leave after my last phone call – she is grateful for our services – I rec. she call St. Luke’s alternative healing program – she asked I stay in touch. 10-25-00 -Angela had gone to SH Family Court & got OOP -had it served – we called Project Safe to have her locks changed. 11-03-00 -Spoke to Angela she states OOP no longer in affect. She did not request one from court. Spouse living with his sister & compl. drops child off for visitation. Compl. refused info for Victor to seek help. 11-16-00 -Called Angela (3X) no answer. 11-17-00 -Called Angela – stated perp has stayed away but are still in contact went to court dropped OOP – we discussed need for her to do counseling – ref. to St. Luke’s again. 12-28-00 -No one home – left material 1-17-01 -Ms. R. refused us entry – stated she had no time to speak – that we were “pressuring” her (I had asked about counseling) Walked away refusing to answer any further questioning. (Sic.) Ms. Vasquez testified that during one visit to Angela R.’s home, she discovered that the defendant had broken into pieces nearly all the furniture in the apartment. At another time, when Angela R. was amenable to intervention, Ms. Vasquez made phone calls to hotlines on Angela R.’s behalf to impress upon the support agencies the urgency of Angela R.’s situation and to explain that Angela R. was truly in fear for her life. Ms. Vasquez testified that, overall, the defendant “tormented” Angela R.. I note that Angela R. entered the courtroom during Ms. Vasquez’s testimony and listened to the counselor recount her numerous attempts at intervention cataloged in the Domestic Violence Cover Sheet. At one point, Angela R. stood up and shouted at the witness: “How can you lie like this?” The next entry in the Domestic Violence Cover Sheet log reads: “5-29-01 -ADA Del Pizzo called states that Angel R. is at DA’s office stating that she would like husband out of apt. ADA Del Pizzo re:her to DA social worker & called D.V.U. stating that Angela R. would come to Pct. to file rpt.” (Sic.) April 2001 On May 30, 2001, Angela filed another Domestic Violence Report in the 24th Precinct. It lists her relationship with the defendant as “child in common” and the signed statement, in Angela R.’s handwriting reads: “On April 25/01 Victor and I (Angela) were arguing about paying bills he was eating and got really mad and pushed me and throw a bowl at me and hit me on my right arm. I had to go to emergency hospital on 59 St. at 8:30 pm.” (Sic.) Officer Eleutice took a photograph of Angela’s injured arm more than a month after the defendant hit her with the bowl. The photograph, in evidence at the hearing, showed her arm still red, bruised and swollen. The defendant was arrested for Assault in the Second Degree. Regarding the April 25th incident, the entry in the Domestic Violence Cover Sheet log reads: 05-30-01 -D.V.O. arrested susp. in regards to Assault 2. Assistant District Attorney Hill testified that on December 18, 2001, the April 25th Assault case against the defendant was re-assigned to him from Assistant District Attorney Del Pizzo. It had been assigned to Ms. Del Pizzo because she handled earlier cases involving the defendant and Angela R.. Ms. Del Pizzo told Mr. Hill that since 1996 Angela R. had been in contact with her approximately once a year either calling for help or to make a new complaint against the defendant. The April 25th Assault case was scheduled for trial on December 19, 2001. Angela R. met with Mr. Hill on that day and told him that she did not want to testify in front of a judge, a jury or the defendant. However, after speaking to Mr. Hill for some time, Angela R. determined that because of the on-going nature of the abuse, it would be best if she did testify against the defendant. The People answered ready for trial, but there were no court parts available and the case was adjourned into 2002. Later that day, Angela R. called and left a message for Mr. Hill asking that he call her. The Assistant saved that message along with four others that Angela R. left for him, and all were admitted into evidence at the hearing. Mr. Hill returned her call and while he does not recall the details of the conversation, he testified that thereafter, when he tried to secure her appearance for trial by subpoena, she did not appear. This Assault case against the defendant was also dismissed. Regarding the April 25, 2001 incident Angela R. testified at the hearing that she wrote and signed the Domestic Incident Report, but that when she went to the hospital she was not crying, and her arm was not swollen or red. When shown the photograph of her arm, she denied seeing the injuries which were clearly visible. Regarding the Criminal Court Assault case which arose out of this incident, Angela R. testified that she had no recollection of telling the Assistant that she worried about what the defendant might do to her if she testified, but she did admit that she probably told the Assistant that she was afraid of the defendant. Regarding this same incident, the defendant testified that Angela was criticizing him “in a very negative way . . . saying all kinds of vicious things at me.” She was accusing him of “all kinds of wild, crazy things,” and she was “out of control.” When he couldn’t take it anymore, he threw the bowl to the ground where it broke into pieces, but it never touched her. The Instant Indictment May 2002 Assistant District Attorney Hill next heard from Angela R. a few months later on May 3, 2002, when she called and left another message for him. In it she requested information about how to contact a woman who had helped her in the past but whose number she no longer had because the defendant had taken all of her papers. Her message continued: “I need to go to the 24th Precinct and make a report because . . . again he put his hands on me – he just “went off” this morning and he’s been doing this for a couple of days and I don’t call the cops because I don’t have the Order of Protection in my hand.” At the end of the message, she choked back tears while trying to say “Thank-you.” On May 5, 2002, Angela filed another Domestic Incident Report at the 24th Precinct. It lists her relationship to the defendant as “child in common” and the signed statement in Angela R.’s handwriting reads: “I Angel R. ask Victor Santiago to please leave my room he said no then hit me.” (Sic.) When Assistant District Attorney Hill returned Angela R.’s phone call of May 3, 2002, he discovered that since they last spoke in December 2001, the defendant had been arrested yet again for violating an Order of Protection by assaulting Angela R.. That case had been assigned to another Assistant and, again, Angela R. refused to testify against the defendant and the case was dismissed. In their phone conversation, Angela R. told Mr. Hill that she had to do something about the defendant, that nothing had worked before, that all her cases had just gone away, but that now she had to get him out of the house and get on with her life. Assistant District Attorney Hill testified that Angela R. came to his office on May 7, 2002, and cataloged for him the defendant’s recent behavior toward her, all of which violated her outstanding Order of Protection against him. She recounted incidents of slapping her, throwing her against a dresser, bending her fingers back so as to cause her pain, and punching her. Hill told her that he wanted her to testify before the Grand Jury, but she expressed reluctance. She said that she was ashamed to tell her story in front of other people, she didn’t want them to judge her, and she was concerned that the defendant would be there. The Assistant reassured her, explaining that he must ask certain questions to establish the defendant’s course of conduct, but Angela R. insisted that she could not talk about certain incidents in front of other people. The Assistant and she determined what she could bring herself to discuss, and they went down the hall to the Grand Jury. When the case was called, Angela went to the door of the Grand Jury, but froze and did not want to enter. Mr. Hill and another Assistant District Attorney spoke to her, and she eventually agreed to go in and testify. In general, she testified that the defendant physically abused her in violation of the specific terms of the Order of Protection. As a consequence of her testimony, the instant indictment was voted charging the defendant with Aggravated Criminal Contempt and two counts of Criminal Contempt in the First Degree. The defendant was arrested on May 14, 2002. In the weeks that followed, Angela left three messages for the Assistant which he saved and played at the hearing. Those messages are: (1) “Hi Chris-Christopher Hill, this is Angela R. I was informed that they, umm, arrested Victor on Friday and I know tomorrow morning is his court date and Chris, umm, I mean, umm, he got arrested but please don’t . . . work something out so that he won’t be in jail for so long. Okay Chris? Thank-you. Bye, bye.” (2) “Good Morning Christopher Hill, this is Angela R., umm, sorry to bother you again, umm, but, umm, I been doing a lot of thinking and, umm, things are very hard for me as a single parent right now Chris and, ummm, again I’m asking you, umm, lets try to work this out, umm, so Victor, umm, he won’t do the jail time, umm, I really . . . I really need, umm, for you to help me on this. I know you’re just doing your job, and you protected me and I appreciate the fact that you did help me when I needed you, so, umm, umm, we need to work something out Chris, umm, because, umm, I’m having a hard time just me with my daughter. I cannot work full time because I have no one to take care of her. It’s getting a little rough and this was not my intention for Victor. I’m sure he learned his lesson, so let’s try to work something out Chris, umm, if you need to get back to me, My number is: xxx-xxx-xxxx. (3) “Good afternoon, Christopher Hill, this is Angela R., again, umm, I don’t want to be a pest, I don’t want to seem like I’m calling you to bother you constantly, but I’m seriously asking you to, umm, reconsider. I want to drop all the charges against Victor Santiago. We wanted to punish him, we did, alright. He doesn’t deserve jail time, so, he went into himself to think, he already has. I can feel it. I haven’t had any contact with him, and, umm, things got exaggerated and I’m asking you . . . let’s drop the charges, and I thank-you and have a good day. Thank-you very much. Bye, bye.” Thereafter, Assistant District Attorney Hill spoke to Angela R. a number of times about the importance of her going forward with the prosecution but she adamantly refused to do so. Instead she accused him of betraying her by putting her in the Grand Jury. Regarding the May 3, 2003 incident, Angela R. testified at the hearing that she wrote and signed the Domestic Incident Report but that what she wrote in it was not true. When the Assistant questioned her about the messages she left for him, she stated that she had no recollection of leaving him messages. When he played the saved messages for her, which were obviously in her voice, she denied that she recognized her own voice. Angela R. testified that she cried before she testified in the Grand Jury because she didn’t want to testify about all her anger and how she had plotted against the defendant. Regarding this same incident, the defendant testified that he never touched or threw the complainant about. He testified that the only way he can explain her report is that she is very controlling woman and that when she can’t get her way, out of frustration she goes to the police and lies to hurt him. Assistant District Attorney Hill testified that on June 25, 2002, before a calendar call of the instant case, Angela R. spoke to him outside the courtroom. She told him that she had exaggerated what had happened, that she made those things up, and that she would not testify against the defendant. The case was scheduled for trial on July 16, 2002, and the Assistant attempted to serve Angela R. in court with a subpoena to appear for trial, but she raised her hand in a gesture of refusal and would not take it. On July 16, 2002, the Assistant reported to the Court that Angela R. had not responded to a subpoena. He stated that he hoped that Officer Eleutice would be able to convince her to come to court and testify, but if Officer Eleutice was unsuccessful, then he would need the Court to sign a material witness order. The case was adjourned to August 20, 2002 for trial. On August 20, 2002, before the defendant’s case was called, Angela R. again spoke to the Assistant outside the courtroom. She told Assistant District Attorney Hill that he was “the devil,” he was going to “rot in hell,” he was hurting her more than the defendant ever did, he didn’t know anything about love, and that if she did testify, she would say that he made up all the allegations against the defendant. At that time, Angela R. admitted to Mr. Hill that she had recently spoken to the defendant, but she denied that he threatened her in any way. In fact, Department of Corrections records show that between June 8th and September 25th, Angela R. visited the defendant at Rikers Island jail 10 times, and that between August 25th and October 2nd, the defendant called her from jail more than 100 times. The defendant at first testified that since the date he was incarcerated he has called Angela’s phone number many times but that he never spoke to her. He testified that he called her work number to talk to her boss about borrowing money for his legal bills, and he called her home phone number to talk to his daughter. After repeated questioning on the subject, the defendant finally admitted that he did call Angela R. over 100 times between August and October and that they spoke on many occasions. The defendant testified that they talked about how much they love each other and about how much they would like to see each other. He stated that Angela knows, through his explanations, how bad the conditions are at Rikers Island, and that she apologized for lying and putting him through all this suffering. The cross-examination of the defendant ends with the following testimony: Q: Well, when she tells you that she wants you home and you want to go home, the one way that you could go home is if she didn’t testify against you, is that right? A: That would be one way, I guess, yes. Q: Have you ever talked about that with her on the phone? A: We talked about every thing, and that is one of the things. We both want to be, we both want us out. Q: And if she didn’t, you’ve talked to her about whether or not she should testify at trial, is that right? A: Well, I did say to her, you know, I can’t get myself out of this, you put me in here so if anything, it’s either you can take me out or, I don’t know what, you know, I don’t know the law. Q: Have you said that to her on the phone or in person? A: Both times, any time when she would say to me that she wants me home, I have to throw the ball back in her court, so to speak. I can’t do anything about getting home, I’m not going to escape, that’s no way to live and raise a family. Q: So that is something that the two of you have talked about, whether or not she should testify? A: No, I want her to testify, I want her to say whatever it is that she’s got to say, by all means, let her say whatever it is that she feels that she has to say. Q: There have been other times when you have been arrested for things with Angela and we have talked about those already. A: Yes, sir. Q: And on those dates, she’s never, she’s never testified against you, has she? A: No, sir. Q: She’s come, sometimes she’s come down to the DA’s office and sometimes she’s come more than once, but she just hasn’t gone to court and testified against you, right. A: She flares up and she simmers down. The defendant’s instant case was adjourned to September 10, 2002, for trial. However, realizing that Angela R. would resist testifying or if forced to testify she intended to perjure herself, the People requested the Sirios hearing which is the subject of this decision. In addition to providing information about Battered Women’s Syndrome, Dr. Burgess reviewed all of the data collected by the police and District Attorney pertaining to the many complaints made by Angela R. against the defendant, and she discussed with the prosecutor the complainant’s current position regarding further prosecution of the defendant. Dr. Burgess reviewed Angela R.’s hearing testimony and she attempted to interview Angela R., but the complainant refused to speak with Dr. Burgess. Dr. Burgess testified that, in her expert opinion, the relationship between Angela R. and the defendant is a classic example of a domestic violence relationship and that Angela R. is an abused woman whose current behavior is explained by Battered Women’s Syndrome. In support of her opinion, Dr. Burgess noted that over a period of years, in a relationship marked by episodes of violence, Angela R. regularly called the police when attacked, obtained orders of protection from the court, then recanted her allegations and refused to prosecute. Dr. Burgess also noted evidence of the defendant’s use of psychological abuse to control the complainant. He threatened to kill her, he blamed her for things that she had not done, he took things that were precious to her, he destroyed things that were important to her, and he acted in ways that enhanced her dependance upon him. While noting that their domestic violence cycle has entered the so-called honeymoon phase, Dr. Burgess also observed that while the defendant is in prison, Angela R. has been placed under tremendous pressure to not testify against him. Dr. Burgess testified that, given the amount of recent contact between the defendant and Angela R., the defendant has played a major role in her recantation and willingness to perjure herself. Dr. Burgess concluded that Angela R.’s behavior as a reluctant witness, her willingness to tell patent lies in court, to rationalize the defendant’s behavior, and to accept blame for her current predicament reflects her imposed lack of self esteem and her level of desperation. This, according to the expert, can only be attributed to the coercion inherent in the honeymoon phase of the cycle of violence and the tremendous pressure that the defendant has placed on Angela R. to relieve him of his current confinement. I am convinced that Angela R. has been physically and emotionally abused by the defendant for many years, and her suffering has gone unchecked and untreated since, at least, 1996. The credible evidence at this hearing makes very clear that Angela R.’s current attitude toward testifying is a classic example of a battered woman’s reaction to what has been described as the honeymoon phase of the abusive relationship. Angela R. is frightened that separation will leave her isolated and without help in caring for her child and her home. The evidence shows that in the past she has feared, and she continues to fear, that the defendant’s violent behavior will be directed toward her again and conceivably toward her child. The evidence establishes the defendant’s contribution to the complainant’s low self-esteem and sense of helplessness. Her interaction with those seeking to help her demonstrates her lack of confidence in herself and her inability to speak up in her own defense. The evidence shows that in the past the defendant had taken steps to isolate Angela R. from those who tried to assist her and that he prevented her from having access to social support agencies. The evidence reveals that the defendant threatened to hurt her if she sought help, he intercepted phone calls from a counselor and he took her Order of Protection (one of many), leaving the complainant to believe that she could not get the help of the police without it. In general, the defendant’s behavior toward Angela R. has been abusive, demeaning and humiliating. According to the testimony, the complainant sought help quite often, but only when she was in acute distress, hurt or terrified. However, the testimony also establishes that she is unwilling to follow through when people try to help her because her feelings of shame and humiliation prevent her from discussing her plight publicly. The record also shows Angela R.’s repeated withdrawal of her complaints to law enforcement. In every case that she initiates, she eventually recants and she takes the blame for incidents in which she has been the wounded party. Indeed, the hearing evidence establishes in this case the defendant’s contribution toward the complainant’s sense of guilt for the predicament she currently finds herself in. Over time, the defendant has violated one court Order of Protection after another with impunity because, as he testified, the complainant never testifies against him. Once again, Angela R. has declined to testify against the defendant. However, in this instance there is clear and convincing evidence that her unwillingness to continue with the prosecution comes after persistent efforts by the defendant to reconcile with the complainant and convince her to do what is necessary to get him out of jail. The defendant, in over 100 conversations with her (each of which seems to have constituted another violation of an Order of Protection), has used the complainant’s desires for a normal and loving relationship to his own end. Angela R. fears that continued prosecution will make the defendant suffer in prison, hurt their relationship and likely lead to additional acts of violence. Obviously, the avoidance of any jail time is a tremendous incentive for the defendant to place extraordinary pressure upon the complainant. Indeed, the defendant testified that he has regularly discussed with Angela R. his urgent desire to be out of jail, and his view that it is up to her to get him out of jail and home to her. Conclusions Nonetheless, the defense contends that the defendant did not explicitly threaten the complaining witness during those 100 phone calls and that the complainant’s current reluctance to testify is not as a result of any misconduct committed by him since the inception of this case. The defendant argues that this distinguishes this case from others in which a witness’s prior statements were properly admitted because the defendant’s misconduct, committed between the inception of the case and the date of trial, was found sufficiently threatening to have caused the witness’s unavailability (See, People v. Geraci, supra; People v. Cotto, supra.) Moreover, implicit in the defendant’s argument is the notion that I should treat the complainant’s current effort to withdraw the charge with no greater concern than I might have toward efforts to withdraw in other kinds of cases. The defense argument in this case suggests that no matter how frustrating, I should simply accept this as a failed prosecution. In this respect the defense argument implies that I view the withdrawal of complaints in domestic violence cases in the same way that I have viewed the occasional attempts to withdraw prosecutions in other kinds of cases where the complainant and defendant were strangers to each other. Except where proof existed that the witness became unavailable because of the wrongdoing of the defendant, in other kinds of cases we have often taken for granted that a complainant’s desire to withdraw from the prosecution was based on the simple unwillingness to get involved in the process, or give up the time it takes to follow through on the complaint, or because of the witness’s unsubstantiated fears of reprisal from some unspecified source. We have frequently not looked beyond those excuses in such cases where no proof was immediately available that a particular and recent act of misconduct by the defendant had brought about the witness’s unavailability. However, I do not believe domestic violence cases are of the same character as other kinds of cases and I am unable to be indifferent about the effort of this complainant to withdraw her complaint. Moreover, I do not believe that the cases admitting prior testimony of an unavailable witness should be read to hold that prior evidence given by an unavailable witness is admissible only when the defendant’s misconduct causing the unavailability occurs between the defendant’s arrest and the date of trial. While that may occur in the usual case, domestic violence matters are of such a different character as to justify a broader application of the rule. Expert studies and our experience in the criminal process has taught us that there is a difference between the dynamics of domestic violence and other types of assault cases adjudicated by our courts. Countless Judges have presided in courts through which the devastated victims of domestic violence have come, first to seek protection but later to withdraw their complaints even though it was clear from prior experience that they were likely to be the victims of violence again at the hands of their partners. There was a time when domestic violence cases were taken less seriously than other cases because of the routine withdrawal of such complaints and the frequent inability to prosecute these cases notwithstanding the serious injuries suffered by the complainants. Over the years we threw up our hands in surrender and tolerated domestic violence because we did not have a method by which these cases could be prosecuted over the complainants’ objections. Frustrated by this recurring sequence of events, police policy and the law evolved in ways designed to circumvent the inevitable recantation of the domestic violence victim. The Police Department implemented a “must arrest” policy in domestic violence cases many years ago. The legislature both amended P.L.§215.51, Criminal Contempt in the First Degree, (amended by L.1994, c.222 and c. 224; L.1996, c.353; L.1998, c.597) and later redefined a section of that statute to create a new statute, P.L.§215.52, Aggravated Criminal Contempt, (Added L.1996, c.353; amended L.1998, c.597) in an effort at more effective intervention in domestic violence cases. While these efforts have proved effective in getting the abusers to court, the prosecution nonetheless still runs into real obstacles at trial when the complainants refuse to testify. Attempts to hold complainants in contempt as a means of compelling their testimony are notably unsuccessful and serve only to abuse the complainants further. Efforts to call the complainants as witnesses and cross-examine them with their prior testimony are of limited usefulness since impeached disclaimers cannot serve as proof of the abuse on the people’s direct case. (CPL 60.35(2)). Attempts to simply persuade the complainants to testify fail, as they did in this case, because the negative pressures upon the battered complainants far outweigh any thoughts they might entertain of gaining relief from the abuse by prosecuting the defendant. We are now aware that domestic violence cases brought by complainants with a long standing history of abuse are to be viewed differently from other crimes of violence which come through our courts. We are accustomed to injured victims seeking retribution, punishment and protection from society. That, without a doubt, is the norm. It is fair to say that we now recognize that in domestic violence cases repeated abuse followed by repeated withdrawal of prosecution and the repeated grant of forgiveness to the abuser make such cases very different from the norm. What is evident is that domestic violence cases are different because of the complainant’s desire for a stable relationship and the exploitation of that desire by the defendant. The hallmark of such cases is the hope for a brighter future with the abuser held by the complainant who is weakened by past abuse and seduced by untrustworthy gestures of love but, whose expectations are eventually met with repeated abuse to the perverse satisfaction of the abuser. In other kinds of cases there has been little, if any, intimate interaction between the parties and generally there is no expectation of a future relationship. As I have noted, in the vast majority of cases victims pursue their complaints seeking retribution and safety from the process provided by the police and courts. Such complainants, although sometimes apprehensive, follow through because they have the strength, the will and the need to do so. Victims of domestic violence do not have the will to follow through. They lack the self esteem and strength to seek retribution or permanent safety from their attackers. This is so not only because of the psychological damage done by repeated abuse but, also because there lurks in the mind of such complainants the fear of physical retaliation to themselves and their children at the hands of an offender whose past behavior toward the complainant makes it highly probable that such abuse will occur again. In short, the defendant’s pattern of behavior causes the victim of domestic abuse to succumb to the offender’s importuning in ways that others might not. Thus, attempts to become unavailable as a prosecuting witness cannot be viewed as we might see voluntary withdrawal in a case where the complainant and the defendant are strangers to one another. Nor, can such withdrawal be viewed as having been made without the misconduct of the defendant when it is attempted during the honeymoon phase of a cycle of violence filled, as it is here, with a mix of fear, false hope, a sense of guilt and weakness of will all resulting from the defendants prior behavior. Clearly, the nature of this syndrome and the cost to the families involved, the police, medical professionals, the courts and society in general cry out for a solution. It is simply unacceptable for our process to turn a blind eye to the dangers of such abuse by shrugging our shoulders and saying that nothing can be done within the framework of existing law. In fact, such a prosecution may continue even without the complainant’s cooperation, so long as the prosecution can show by clear and convincing evidence, either direct or circumstantial, that the witness’s unavailability was procured by violence, threats, chicanery or other acts of misconduct on the part of the defendant. (People v. Geraci, supra; People v. Cotto, supra). This rule is the product of sound public policy and is meant to prevent a defendant from taking advantage of his own wrong and to “[protect] the integrity of the adversary process by deterring litigants from acting on strong incentives to prevent the testimony of an adverse witness.”(People v. Geraci, supra, quoting Steele v. Taylor, supra at 1202). No class of cases seem more worthy of the protections afforded by the public policy which dictated this evidentiary rule than matters involving domestic violence. Moreover, given the purpose of the rule it is hard to conceive that it should be limited to situations in which the misconduct occurred between the date of the charge and the date of the trial and, indeed, no language contained in any of the cases on this subject suggests that it should. In this case the conclusion is inescapable that this abused complainant seeks to make herself unavailable as a witness because of the pattern of misconduct directed toward her by the defendant. The defense notes that in recent weeks the defendant has not threatened the witness but has spoken to her only in terms of endearment, seeking her forgiveness and expressing his desire to return to a harmonious relationship with her. While that claim may be true to some extent, it is clear that the defendant’s promises are not to be trusted and, in any event, always contain the implicit threat that the complainant’s unwillingness to cooperate with him will result in dire consequences for her. The complainant’s decision not to cooperate with this prosecution is, without a doubt, strongly, if not totally influenced by the long history of domestic abuse that appears to affect all the decisions made by the complainant with respect to this defendant. It is true that the evidentiary consequences would be different in this case if the complainant’s choice not to go forward were premised exclusively on feelings of love and loyalty to the defendant. However, the violent domestic history of these two people, and defendant’s recent persistent importuning of the complainant to withdraw from this prosecution, have made clear that Angela R.’s choice with respect to continuing this prosecution was not made without fear of the defendant and the complex mix of emotions one might expect to find in a person suffering from Battered Women’s Syndrome. Indeed, abuse of the complainant by the defendant is the recurrent theme in the relationship between these two parties. Thus, in my view, there is clear and convincing evidence that the defendant’s misconduct procured the complainant’s unavailability as a witness in this prosecution and, as a fitting consequence, the People should be allowed to present evidence of the complainant’s prior statements and Grand Jury testimony regarding this incident to the trial jury. (People v. Cotto, supra; People v. Geraci, supra). The foregoing constitutes the decision and order of the court. FootNotes: I have omitted the complainant’s last name to spare her further embarrassment. It should be noted that the People’s use of an unavailable witness’s prior statements in their direct case is not permitted if the only acts of misconduct which brought about the unavailability are the very acts charged in the indictment. (People v. Maher, 89 N.Y.2d 456 [1997]). The so-called Sirois hearing is named for Mrs. Sirois, a witness in the Murder trial of her once estranged husband, who recanted her testimony after reconciling with the defendant. (Matter of Holtzman v. Hellenbrand, supra). See, Douglas E. Beloof & Joel Shapiro, Let the Truth Be Told: Proposed Hearsay Exceptions to Admit Domestic Violence Victims’ Out of Court Statements as Substantive Evidence, 11 COLUM. J. GENDER & L. 1 (2002). Since this case fits into that 90 percent statistic, I refer throughout to the batterer as “he” and the battered partner as “she.” DV refers to Domestic Violence. FUI is Follow Up Interview OOP is Order of Protection. I have redacted the telephone number. I have redacted the telephone number. This in not just about incarcerating the offenders. Absent some form of adjudication we are powerless to direct counseling and other alternatives that might bring some measure of peace to the abused party.

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