Petition Closed

New York State Commission on Judicial Misconduct Remove Judge Stephen Greller as a Judge and throw out a case built on lies and Judicial misconduct

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On October 2, 2012, Justin Carrino was arrested and charged with rape and sodomy of his fiance he lived with in Fishkill, NY.

With ZERO physical evidence of a rape, the DA's office took the word of a woman with mental and substance abuse issues, and charged this 27 year old with these crimes.  She admited in front of a jury that the sex was consentual on the morning of October 2, 2012. How does that become RAPE?

Justin's rights were violated immediatley by NY State Police by continuing to interview him after he TWICE asked for a lawyer.

In the course of the months leading up to the trial, the "victim" was allowed to harass and call the young mans mother, sister, and friends. She was admitted to rehab and had her children removed from her by DFAC. When the time came for the trial, she was allowed to commit so many acts of perjury and continue this lie, while no witnesses were allowed to appear on behalf of Justin.

Those were were originally planning to testify, were threatned by Judge Greller with being arrested of they showed up to court. 

This so called "vctim" has been engaged to a man she met in rehab and has been living with for the last 7 months, while lying on the stand that she lived alone and has issues with forming a relationship in her life.The DA allowed this lie, only to push this case, while Justin has been in jail on her lies.

 Today, Justin was sentanced to 56 years to life based on the LIE of a woman.

A mother is facing never seeing her child, his sisters lose their brother, and worse of all, his son will not have his father if this injustice is not over turned.

 The "CW" is the woman who moved to NY with this younger man, and is the alledged "victim" in this case. The future Mrs. Roberts.

 

"In order to be found guilty of Aggravated Sex Abuse in the First Degree as charged in this indictment the people would have to have proven that the defendant inserted into the anus of the CW a foreign object by forcible compulsion.  There was no testimony by any witnesses alleging any evidence of an injury to the rectum of the CW.  In order for this count to be sufficient there must be physical injury.  There was no testimony that directly related to the CW’s physical injury.  There was merely testimony that the CW and the defendant had consensual sex.  There was no corroborating evidence that the broom was even inserted into the CW’s rectum.  Furthermore, there was no recovery from the scene of the crime of a belt buckle despite the consent, by both parties, to search the apartment.  There was no physical evidence to support this count of the indictment and therefore the conviction for same should be set aside.

 

Directly from a 330-30  motion  the main   MISCONDUCT :

PROSECUTORIAL MISCONDUCT

1. First, a mistrial application was made during the trial when the CW testified about the defendant’s Florida charges in direct opposition to the court’s Sandoval ruling.  The prosecutor in this case asked the CW whether or not she knew of what the defendant was charged with in the State of Florida.  The CW responded “yes, assault and battery” against a prior girlfriend.  A verdict can properly be set aside for prosecutorial misconduct when the evidence elicited interferes with the jury’s mission.  People v. Alicea, 37 N.Y.2d 601 (1975).  When the mistrial application was made the court decided to give the jurors a curative instruction to disregard what the CW said about the Florida incidents.  This was insufficient.  This is information that cannot be forgotten.  This information is overwhelmingly prejudicial to the defense.  This is information that may have caused the jury to come to a conclusion based solely on his past criminal history.  The prosecution has an obligation to sufficiently “prep” their witnesses.  The prosecutor here specifically asked the victim a question that was outside of the Sandoval ruling of the court.  The trial court should have granted the mistrial application as the response from the CW to that question introduced factual material that was very prejudicial to the defendant and denied him a fair trial.

2.    Second, the prosecution filed a demand to produce upon the defense.  The prosecutor asked specifically for any text messages that were recovered from the defendant’s phone.  The defendant purchased prior to his incarceration an iPhone 5.  The defense did not have the capability to charge the phone and hence recover the requested text messages.  There were several conferences, held off the record, discussing this information.  During one of the conferences the prosecutor indicated that they have a machine which will extract all the information from the phone but the defendant would need to sign a voluntary consent waiver to search and examine cellular phone/ mobile device form.  The defendant did not agree to sign the consent form.  The text messages were ultimately retrieved from the phone by the defense and provided to the prosecutor that same day.  This was at least ten days prior to the start of this trial. 

3.     The Court ordered at one point to turn over the phone despite the fact that the defendant did not consent.  But the primary basis of the request for information from the phone was to get any text messages between the CW and the defendant that existed on the phone. The prosecutor made a motion to preclude said information because the phone was not turned over to them as directed by the Court.  The defense pointed out that the court did not have the authority to direct that the defendant’s personal property be turned over to the prosecution.  Further, the information the prosecutor was requesting was impeachment material and was not required to be turned over until just prior to the testimony of the witness that was to be impeached.  The defense agreed to turn over the text messages prior to the start of the trial as a professional courtesy.  The Rosario rule is based on the theory that a witness’ prior statements are an indispensable tool in cross examination.  The requirement is to turn over the information prior to the use for impeachment purposes based on a blanket discovery request.  Evidence cannot be suppressed where the prosecution knew of or reasonably should have known of the evidence and its exculpatory nature.  People v. Morrison, 90 A.D.3d 1554 (4th Dept. 2011).

 

4. In this case the prosecution had access to the CW’s phone.  In fact, photographs were taken of some of the text message correspondence between the CW and the defendant on the CW’s phone.  They had access to the phone and could have extracted any and all the information from the CW’s phone at that time.  Instead, the phone was returned to the CW and no information was preserved.  For the prosecution to then turn around and say that the defense had not complied with their discovery request and make the application for preclusion is unfounded.  Furthermore, the prosecution could have filed a search warrant request for the contents of the phone back in October of 2012.  Neither of these things was done.  To preclude the information that was exculpatory in nature denied the defendant a fair trial.

5.    Lastly, based on information and belief, there were numerous occasions when the prosecutorhad ex-parte communication with the judge without defense counsel present.  

JUDICIAL MISCONDUCT

1. The conduct of the court was detrimental to a fair trial in this case.  During the trial, the Judge repeatedly made negative facial gestures when defense counsel made objections, repeatedly glared at the defendant during the CW’s testimony, spoke in a harsh tone when addressing defense counsel, sustained objections when none were made and interfered with the defense presenting a case.  All of this occurred in the presence of the jury.  Outside the presence of the jury the judge continually yelled at defense counsel alleging that they were wasting time and going to interfere with his vacation.

2..      Defense counsel pointed this out to the judge and the judge acted appropriately for a limited period of time before relapsing into the same clear pattern of inappropriate and unjudicial conduct.  This contemptuous attitude displayed by the court appeared to be one sided.  The judge did not act the same way when dealing with the prosecution, the prosecution witnesses, or in response to issues raised by the prosecution.  The judge at one point asked defense counsel how many days they anticipated the defense case would take.  It was determined that it would not take any longer than 1 day.  The court complained and asked defense counsel if they would be willing to stipulate to what the scheduled defense expert would say to move the case along.  The prosecution was never given a similar warning despite the fact that they had several witnesses testify who were either unnecessary or could have been stipulated to.  The prosecution’s case was presented in approximately 15 days.  An attorney has the obligation to zealously represent a client within the confines of the law.  It is not the role of defense counsel to make the court proceedings smooth for the court or the prosecution.  Defense counsel has an obligation to protect the record, and a trial judge should not berate the attorney for doing what they are obligated to do.  People v. Paul, 212 A.D.2d 1020 (4th Dept. 1995).  The Judge’s actions in this case clearly prevented the defense from properly preparing and presenting a defense for the defendant, there by denying him a fair trial.

   3. Defense counsel makes these representations and requests that a hearing be held to amplify the issues of misconduct by the court to create a proper record for review by the appellate court.  The defendant was denied a fair trial based on the behavior discussed herein and, as a result, defense counsel asked that the verdict be set aside and a new trial be ordered.  Defense counsel further requests that the trial judge disqualify himself and the matter be transferred to another judge for further proceedings

4.   For all these reasons, and for all the reasons set forth in this Motion, and based  all upon objections raised by trial counsel, it is clear that the defendant was deprived of his right to a fair trial and to confront and cross examine his accuser.  As such, the Court should set aside the verdict.  The defendant has alleged that the verdict was the result of prosecutorial misconduct.  As such, double jeopardy attaches, and the defendant should not be re-tried.  In the event that the Court disagrees, the matter should be remanded for a new trial.

 

LEGAL INSUFFICIENCY

1.    The power granted to the Trial Court to set aside or modify a verdict under this section is normally limited to a determination that the trial evidence was not legally sufficient to establish the defendant’s guilt of the offense or that the evidence as a matter of law was inadequate to prove guilt beyond a reasonable doubt.  CPL 70.10(1); CPL 70.20; People v. Carter, 63 N.Y. 2d 531, 536 (1984).

2.    The standard for reviewing the legal sufficiency of evidence in a criminal case is whether, after viewing the evidence in a light most favorable to the prosecution, any (emphasis added) rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  People v. Contes, 60 N.Y. 2d 620, 621 (N.Y. 1983).

>3.   Legally sufficient evidence means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant’s commission thereof.  CPL 70.10 (1).  CPL Section 70.20 states that no conviction of an offense by verdict is valid unless based upon trial evidence which is legally sufficient and establishes beyond a reasonable doubt every element of such offense and the defendant’s commission thereof.  The trial court may set aside the verdict when the evidence is legally insufficient or inadequate as a matter of law to prove guilty beyond a reasonable doubt.  See People v. Carter, 68 N.Y.2d 5530 (1984).  In In re Winship, 397 U.S. 358 (U.S. 1970), the United States Supreme Court held for the first time that the due process clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime for which he is charged.  The New York State Constitution offers a similar protection.  The prosecution must prove every element of the crime including intent whenever intent is relevant.  People v. Segal, 54 N.Y. 2d 58, 60 (1981).

4.   In this case, the People’s proof against defendant for committing the crimes listed in the indictment are based solely on testimony of the complaining witness, NAME REMOVED

 

8.     A motion to dismiss the indictment for legal insufficiency grounds pursuant to CPL 210.20(1)(b), 210.20(1-a) and 210.30 was previously filed with the Court.  A copy of the full grand jury presentation was provided to defense counsel prior to the start of the jury trial.  After review of the presentation I made the application to the court again that the presentation was insufficient.  The court denied that motion despite the fact that the presentation to the Grand Jury was insufficient.  The case then proceeded to trial.

9.  After jury trial, the defendant was convicted of all counts of the indictment.  The presentation of the people’s case during this trial was insufficient. In order to be found guilty of Predatory Sexual Assault, the people must prove at trial that the defendant committed the crime of rape in the first degree with use of a dangerous instrument.  Here there was no corroborating evidence of rape.  The court heard testimony from the CW but also heard testimony from experts that there was no physical evidence of rape.  What we have is an admission of consensual sex by both the defendant and the CW.  The lab serologist testified that there was no semen present in either her vagina or anus.  Further, both the medical expert and the safe nurses who testified at trial indicated that although there was trauma to both the CW’s vagina and anus, trauma in and of itself is not proof of rape.  There were several other explanations as to how that injury, if we could even say injury, was caused.  Furthermore, there was no testimony that the broom was classified as a dangerous instrument.  To be deemed a dangerous instrument the people would need to have proven that the broom was readily capable of causing death or serious injury.  No such evidence was presented to the jury.

10. In order to be found guilty of Aggravated Sex Abuse in the First Degree as charged in this indictment the people would have to have proven that the defendant inserted into the anus of the CW a foreign object by forcible compulsion.  There was no testimony by any witnesses alleging any evidence of an injury to the rectum of the CW.  In order for this count to be sufficient there must be physical injury.  There was no testimony that directly related to the CW’s physical injury.  There was merely testimony that the CW and the defendant had consensual sex.  There was no corroborating evidence that the broom was even inserted into the CW’s rectum.  Furthermore, there was no recovery from the scene of the crime of a belt buckle despite the consent, by both parties, to search the apartment.  There was no physical evidence to support this count of the indictment and therefore the conviction for same should be set aside.

11. The defendant was found guilty of Rape in the First Degree by forcible compulsion.  As previously noted, there was no physical evidence of rape.  The only testimony we heard was that there was trauma to the vagina.  There was no testimony that force was used.  The CW testified that she had never said “no” before to the defendant during their sexual activities.  During the alleged rape the CW testified that she said no and then went limp.  Defendant admitted via the videotape, which was introduced by the prosecutor at trial, that he stopped when the CW went limp.  There was no proof submitted that the defendant’s conscious objective was to use force to engage in sexual activity.  Therefore, this conviction for Rape in the First Degree should be set aside.

12.  The defendant was convicted of both counts of Assault in the Second Degree.  The evidence presented in support of the two counts of Assault in the Second Degree was insufficient.  The people had to have proven the necessary element of intent.  There was no evidence presented at trial that this was an intentional act on behalf of the defendant.  In fact there was no proof of his objective at all.  We heard testimony that the CW said “no”.  There was evidence submitted by the defendant’s statement that he stopped having sex with the CW when she went limp.  After the sexual encounter, there was testimony that an argument occurred.  During this argument the defendant, through his statement, said that the CW began to throw things at him.  There was additional testimony through the defendant’s statement that he was trying to stop the CW from throwing things at him by hitting her with the broom.  That is the sole reason that he even picked up the broom.  There has been no proof that the actions of the defendant were not in response to the actions of the CW.  The injury that was sustained by the CW was not serious in nature as evidenced by the lack of further medical treatment and or medication.  There was no corroborating evidence presented that the CW suffered substantial pain or impairment of physical injury.  The people had to prove that the CW sustained serious physical injury as a result of the actions of the defendant.  No such proof was submitted at trial.  And once again, there was no testimony that a broom could be deemed a dangerous instrument.  Therefore, the convictions on both counts of Assault in the Second Degree should be set aside by the court.

13. The defendant was convicted on the last count of the indictment to Criminal Contempt in the First Degree.  Evidence was presented at trial providing sufficient proof of criminal contempt in the second degree but not criminal contempt in the first degree.  The defendant did violate a valid order of protection.  That fact was conceded at trial.  It should be noted that there were no threats made.  There was no evidence elicited to prove this contact was by a course of conduct that harassed, annoyed or alarmed the CW.  There was testimony from the jail personnel that calls deemed incomplete were never connected and as a result the CW would have no knowledge that the calls were even placed.  Without a connection or voicemail there is no proof that the CW had knowledge of the existence of the calls to cause her any fear or intimidation.  In fact the CW testified that she did not know of the existence of the calls until brought to her attention by the DA.  Furthermore, two phone calls in and of itself are not a course of conduct.  The People failed to prove Criminal Contempt in the First Degree.  Therefore, the conviction for Criminal Contempt in the First Degree should be set aside by the Court.  At trial, defense counsel properly preserved the record by moving for a trial order of dismissal on all charges, which was denied.

 JURY INSTRUCTIONS

8.      During a conference that was off the record, defense counsel requested two lesser included offenses be charged for Counts four, six                   and seven of the indictment.  Under New York Law, a person is guilty of Assault in the third degree, under subdivision two, when he recklessly causes physical injury to another.  There was no evidence of serious physical injury submitted to the jury. Without that the conviction should be modified to Assault in the third degree.  In People v. Bodford, 238 AD2d 928 (4th Dept. 1997), the Court held that if proof of serious physical injury is not presented then the Court is proper in its modification of the conviction to Assault in the third degree.  But this jury was not given that option as they were never charged with the lesser included of Assault in the third degree.  Without giving the jury the option of the lesser included the Court denied the defendant of a fair trial.

9.      The court gave the consciousness of guilt charge to the jury over the objection of the defense.  The justification for giving this charge was the supposed threats that the defendant made during telephone calls between himself and his mother and friend.  No overt actions were taken by the defendant to convince the CW to drop the charges.  No overt actions were taken by his friend or any family member to convince CW to drop the charges.  In fact, no threats were made to the CW at all by anyone involved in this case.  The use of the phone calls and conversations with his mother about the defendant’s temper and how that landed him in jail hardly points to guilt.  Inferences from these conversations could be consistent with innocence as well as guilt.  An innocent person in defendant’s position may have uttered such statements not because of knowledge of his own guilt but because he was a scared and desperate man; a man who was wrongfully accused of a crime he did not commit.  Evidence that indicates consciousness of guilt is generally considered weak proof of the commission of a crime.  See People v. Moses, 63 N.Y.2d 299, 308 (1984);  People v. Benzinger, 36 N.Y.2d 29,33 (1974).  This instruction should be limited to circumstances that the prosecution has proof of threats being made and overt actions taken by someone to execute those threats.  The giving of this instruction violated the defendant’s right to a fair trial.  This charge should not have been given to the jury.

10.   The Court also failed to give the lesser included charge of Criminal Contempt in the Second Degree as requested by the defense.  Since there was no evidence of a course of conduct of phone calls made by the defendant to the CW from the jail this would have been the proper charge to have given to the jury.  Without giving the jury the option of a lesser included charge on this matter, the defendant was once again denied a fair trial. 

 

LIMITING CROSS EXAMINATION

8.    As discussed previously, the entire focus of this trial relied principally on the credibility of the CW.  Cross examination was the only available means of testing her perceptions which the defendant maintained were incorrect. 

9.   During cross examination, defense counsel asked the CW about an incident that occurred at their apartment on September 7, 2012.  The defendant maintains that he thought the CW was going to injure herself and that is why he called 911.  The police were called by the defendant based upon a telephone call he had with the CW.  The defendant was worried that the CW was going to injure herself earlier in the day and as a result he phoned 911.  When the police arrived at the apartment they found the CW intoxicated and asleep on the couch.  The CW, however, testified that the police left the apartment with no further action.

10.Defense counsel attempted to question her further after the CW testified that the police found no issue with her mental state.  The defense was prevented from cross examining the CW regarding  subsequently being admitted to St. Francis Psychiatric Unit and deemed suicidal and alcohol dependent as a result of the police officers welfare check of her that day.  Defense counsel had a duty and a right to vigorously question the CW.  The Court improperly limited defense counsel’s cross examination of a key prosecution witness by preventing questions of her which would have presented glaring inconsistencies in the CW’s statement, and further limiting the jury’s ability to access the CW’s credibility appropriately.  CW opened the door to this questioning by stating that she never had a psychiatric condition.  She was never prescribed medication for any psychiatric admission.  Both of these statements would have been refuted by medical records that documented such psychiatric history, but the defense was prevented from addressing the same.  Thus, any effort to show the jury that her testimony was not credible was thwarted by the court. 

11. The CW was the linchpin of the prosecution’s case.  The medical records obtained by defense directly contradict what the CW testified to at trial.  If allowed to hear and or review such impeaching evidence regarding, the jury’s verdict of guilty might have resulted in a different outcome.  The Court in this case found the CW’s psychiatric records could not be used for impeachment purposes.  Courts have held that psychiatric records of a testifying witness, particularly in a sex abuse case, is permitted.  People v. Earel, 89 N.Y.2d 960 (1997);  People v. Bugayong, 182 A.D.2d 960 (1st Dept. 1992).  This ruling by the court was incorrect.  Moreover, it is error for a court to limit cross examination if the defendant is prevented from exploring information which would be consistent with the defense theory of the case or the witness’s credibility.  People v.Terry, 209 A.D.2d 257 (1st Dept. 1994;  see also People v. Gross, 71 A.D.2d 1526 (4th Dept. 2010).  The defense theory in this case was to show that the CW was lying.  The process for showing this to the jury was to provide not only physical evidence which showed no proof of rape and sodomy, but to impeach the CW with her many inconsistent statements.  Cross examination rules are often relaxed in a criminal case when the testimony relates to a material issue in the case.  People v Hadden, 95 A.D. 2d 725 (1st Dept 1983).  The constitutional right of confrontation includes cross examining and impeaching a witness as to the motivation to make a false accusation.  Here, the theory of the defense was that the CW ran out of money and needed the “excuse” as to why she needed to go home and be rescued by her parents.  Such a restriction on defense counsel’s ability to confront and cross examination the CW regarding her credibility denied the defendant a fair trial.  Olden v. Kentucky, 488 U.S. 227 (1988) ; see also Mitchell v. US, 526 U.S. 314 (1999);  Davis v. Alaska, 415 U.S. 308S.Ct. 1105 (1974); People v. Jones, 305 A.D.2d 227 (2nd Dept. 2003).

SIXTH AMENDMENT RIGHT TO AN ATTORNEY

8.      The trial court allowed the taped interview between the defendant and agents of the New York State Police to be played in its entirety. The defendant asked numerous times for an attorney and as a result the questioning should have ceased.  Thus, the only portion of the tape that should have been admitted was the first part up to the point in time in which the defendant invoked his right to counsel.

9.      The defendant has a Sixth Amendment right to counsel as provided by the New York and United States Constitution.  This protection is provided to insure that the fundamental rights of a defendant to life and liberty are not violated.  The courts of the state of New York have consistently exercised the highest degree of vigilance in safeguarding the right of an accused to have the assistance of an attorney at every stage of the legal proceeding against him.  People v. Cunningham, 49 N.Y. 2d 203, 207 (1980).  The defendant during a line of questioning must be provided the opportunity to obtain an attorney, and if he asks for an attorney all questioning must cease.  See People v. Glover, 87 N.Y. 2d 838, 839 (1995); People v. Espisito, 68 N.Y. 2d 961 (1986).

10.  Whether a particular request is or is not unequivocal is a mixed question of law and fact and must be determined with reference to the circumstances surrounding the request including the defendant’s demeanor, manner of expression and the particular words used by him.  People v. Jones, 21 A.D.2d 429 (2nd Dept. 2005).  In People v. Harris, 93 A.D.3d 58, 70 (2nd Dept. 2012), the court found that the defendant’s statements constituted an invocation to his right to counsel so all subsequent statements made in the police interview were suppressed.   In that case, the defendant while in custody, was the primary suspect in a murder investigation and stated, “I think I want my lawyer and I want to go home”, at which point the police terminated the interview.  Id, at 61-62.  The court found that these words were unambiguous, as the request was couched as a desire for assistance of counsel and to be released from custody.  The officers revealed that they understood this to be a request for counsel as shown by the investigator terminating his interrogation of the defendant.  Id at 70; see also People v. Porter, 9 N.Y. 3d 966 (2007)(holding that the defendant’s statement “I think I need an attorney”, while not always constituting unequivocal invocation of right to counsel, did so here when the officer made note of the request and no facts pointed to a contrary inference);  Esposito, at 961 (holding that defendant who states “I might need a lawyer” and proceeded to make statements without an attorney had unequivocally made the initial request for counsel).

11.  In Jones, supra, the court found that the defendant’s statements when taken in context, articulated his desire to have counsel present and thus the incriminating statements he made following that request were suppressed.  In that case, the defendant mentioned several times that he wanted an attorney by stating “’maybe I should talk to my attorney” and “I think maybe I should talk to my attorney”.  See also, People v. Fredenburg, 289 A.D. 2d 868 (3rd Dept. 2001).  In the case at bar, each time the defendant indicated he needed to speak with an attorney the investigator continued his line of questioning.  Never did he clarify whether the defendant wanted to make a phone call to his attorney.  Never did he stop the questioning.  Instead, he told the defendant that it was his right to have counsel, but then proceeded with questioning.

 

12. In the case at bar, the defendant asked at least two times to talk to an attorney.  The defendant made the first request by stating “I need an attorney, because this is ridiculous.  I’m being accused for shit I haven’t done.”  The second request was “I have to get one.  I have to call my Georgia guy and get one that’s New York barred up here.”  This is a clear request for an attorney and all questioning should have ceased at that point.  As a result, the court allowing the statement in its entirety denied the defendant of a fair trial.IRRELEVANT AND PREJUDICIAL EVIDENCE

8.     The Court also allowed several phone calls made by the defendant to his mother and friend from the Dutchess County Jail.  It is submitted that this evidence was irrelevant.  The conversations include but are not limited to conversations of prior bad acts which were improperly admitted through those taped phone calls.  First, there was no Ventimiglia hearing held, either before trial or outside the jury’s presence during trial, although defense counsel requested one in their omnibus moving papers.  Second, the evidence that was offered was, in fact, testimony of uncharged crimes.  There are references to the defendant’s prior relationships.  Relationships which did not always end in an amicable way.  In fact, there is specifically a reference to two prior charges being dismissed against him.  Third, the evidence was irrelevant to any issue in the case.  In no way did this evidence tend to prove that the defendant committed any of the charges included in the indictment.  Had the court held a Ventimiglia hearing, a proper determination would have resulted in the prosecution being precluded from introducing that evidence.  These tapes refer to uncharged crimes or crimes that were dismissed, and which were not relevant evidence to be introduced at trial.  Bottom line the statements were simply irrelevant and very prejudicial to the defense. 

9.      These phone calls actually outline the defendant’s desperation and desire for the truth to come out.  The prosecutor, however, at no point during these phone calls does he admit to committing any of the crimes charged.  He continuously denied the allegations of the indictment.  What does come into these conversations was relationships with prior girlfriends and issues that he has had with the criminal justice system.  Relevant evidence has been defined as evidence that has probative value regarding a material fact.  People v. Scarola, 71 N.Y. 2d 769 (1988).  Materiality has been defined as a fact that relates to the issues raised by the charges brought against the defendant and the substantive law by which those issues are circumscribed.  Evidence that is remote or conjectural to the issue at fact should be excluded.  The phone calls did not relate to any material fact of the case at bar.  They were merely played to show propensity and the defendant’s bad character.  These mislead the jury and confused the issues at hand.  Consequently the defendant was denied  a fair trial.

EXPERT TESTIMONY

10. Further, the court allowed Dr. Jack Coyne to be deemed an expert and give a clinical impression of the CW’s alleged injuries.  Dr. Coyne’s specialty is in pediatric sexual abuse.  He is deemed a pediatric physician.  His testimony at trial regarding the Tanner scale and types of abuse that are found on child’s genitalia based on his experience had nothing to do with the issues presented in this case.  The CW was a 32 year old female.  Dr. Coyne testified to material outside his area of expertise.  Expert testimony is admissible when it would help clarify an issue involving professional or technical knowledge.  See People v. Rivers, 18 N.Y.3d 222 (2011).  Dr. Coyne’s testimony was based on the child sexual abuse syndrome which was totally irrelevant to the issues at hand.  The prosecutor got in testimony of the alleged injury through the ER doctor and the Safe Nurses who had direct contact with the CW.  As a result, the testimony of Dr. Coyne was bolstering in nature.  The testimony of Dr. Coyne prejudiced the jury and denied the defendant a fair trial.

CREDIBILITY

11. The defense was not able to call a witness to refute the CW’s credibility.  The defendant’s sister, Alexander Stamatakis, and her boyfriend, Matthew Morse, were present on a previous occasion where the CW accused the defendant of rape.  They both were fully clothed and with other people.  The court denied the testimony from the defendant’s sister by stating that the information that she would be providing was hearsay.  The court based this decision on the taped jail phone calls made by the defendant to infer that Alexandra Stamatakis was influencing the CW in an attempt to get the charges dropped. The court indicated she could be charged with a crime (when there was no evidence of a crime being committed by her).  When the defense attempted to call the boyfriend, Matthew Morse, the Court stated it was prohibited by hearsay and the Rape Shield Law.  The court erred when it acted as a protector for the CW rather than an arbiter of the law.  First, hearsay is an out of court statement that is offered for the truth of the matter asserted.  Here the sister and her boyfriend were going to testify as to an event that they personally witnessed.  Furthermore, their testimony would have presented factual information that would show that the CW had made false allegations in the past in support of the defense theory of this case.  This is clearly within the exceptions to the hearsay rule.  The defense has the right to introduce testimony about the character of the key prosecution witness for honesty.  The court erred by barring the defense from calling character witnesses to testify about the veracity of the principle prosecution witness in this trial.    People v. Streitferdt, 169 A.D.2d 171(1st Dept. 1991).  

12.The court responded that even if this testimony was admissible that it would be collateral.  Credibility is never collateral.   A person’s motive to lie is never collateral.  A trial court’s discretion in allowing extrinsic proof to establish a reason to fabricate is circumscribed by the defendant’s constitutional right to present a defense and confront their accusers.  People v. Panetta, 250 A.D.2d 710 (2nd Dept. 1998);  People v. Rios, 223 A.D.2d 390 (1st Dept. 1996);  People v. Sampel, 16 A.D.3d 1023(4th Dept. 2005).

13.  Lastly, the reliance on the Rape Shield Law to not allow such testimony was error.  The Rape Shield Law is to protect the CW’s chastity and any prior sexual history is not admissible unless it involves the defendant in the action.  That is the first exception to the rape shield law is conduct involving the defendant.  That is clearly the case here.  See People v. Badine, 301 AD2d 178 (2nd Dept 2002);  People v. Westfall, 95 AD2d 581 (3rd Dept 1983).  The CW on a prior occasion had falsely accused the defendant of rape when they were fully clothed, and in a public place with other people witnessing the fact that no rape occurred.  It was error for this court not to allow this line of questioning.

 

 

 

 

 



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