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COA: Defendant can’t confront threatened witness

A convicted burglar gave up his right to confront a witness at his 2009 trial because his threats against her were why she was not available to testify, the state’s highest court has affirmed.

The Court of Appeals on Thursday, in People v. Smart (2014 NY Slip Op 02972), found the trial court was not wrong to allow the grand jury testimony of the unavailable witness, which led to the conviction of Floyd Smart, 48, formerly of Rochester, for second-degree burglary in connection with a 2008 break-in at a Greece home.

“The people may not admit a witness’s grand jury testimony into evidence merely because the defendant expressed hope that the witness would not testify against him or her at trial,” states the 19-page opinion authored by Judge Sheila Abdus-Salaam. “Rather, the people must demonstrate by clear and convincing evidence that the defendant engaged in misconduct aimed at least in part at preventing the witness from testifying and those misdeeds were a significant cause of the witness’s decision not to testify,” see People v. Geraci, 85 NY2d 359, at 366-368.

The decision identifies the unavailable witness as Jane Doe. The panel found the people showed Smart threatened Doe in a telephone conversation when he said he would “[w]ring” her neck and that it would be a “good idea” for her to leave town.

Smart was represented on appeal by Rochester attorney Mark D. Funk, who said he was disappointed in the decision.

“We believe the court’s decision was based on a faulty premise not supported by the record; that defendant had a hand in the witness asserting her Fifth Amendment privilege,” he said. “She had four sets of charges pending and had a legitimate reason to assert the privilege irrespective of any actions of defendant.”

Funk argued March 24 that Smart’s Sixth Amendment rights to confront and cross-examine witnesses against him was violated when Judge William F. Kocher, sitting in Monroe County Court, allowed Doe’s grand jury testimony to be presented at Smart’s trial.

Funk also argued Judge Kocher should have questioned Doe after she asserted her Fifth Amendment right to determine if she had a lawful reason for doing so; that her reason had to be linked to the defendant’s wrongful conduct and was not to protect herself from incrimination of other pending unrelated charges. Doe had received immunity in the burglary case, but also had four warrants pending against her, unrelated to the Greece burglary.

Because there is a constitutional issue involved, Funk could seek certiorari to see if the U.S. Supreme Court would review the case. He declined to comment on possible future options.

Matthew R. Dunham, an assistant district attorney in the Monroe County District Attorney’s Office, prosecuted the matter on appeal.

“I was happy to see it was affirmed and it was essentially a unanimous decision,” he said.

Dunham said the Court of Appeals confined its opinion to the circumstances in the Smart case. He said he hoped it would go a little broader on the issue itself, saying it would be sufficient to use prior testimony if tampering plays any role in a witness’s unavailability to later testify.

According to the decision, Smart, Robert Verstreate and Smart’s girlfriend, Doe, planned to burglarize a house in the town of Greece on Oct. 3, 2008. Doe fell asleep in the back seat of Smart’s car and woke up alone with the car idling.

When the homeowner suddenly came home, Doe hit the horn to alert Smart and Verstreate, whom she assumed were inside. When confronted by the homeowner, Smart and Verstreate claimed they were visiting a friend they mistakenly thought lived there. The homeowner then discovered her belongings had been displaced and some of her jewelry was missing.

Doe received immunity from prosecution, testified before the grand jury and then disappeared, prompting the people to ask that her grand jury testimony be admitted into evidence. The people alleged Smart forfeited his right to prevent admitting the grand jury testimony by tampering with Doe.

To support their request, prosecutors submitted taped jailhouse telephone conversations between Smart and Doe and Smart and his mother who was urged to get Doe out of state.

The people presented most of their evidence on the first day of the Sirois hearing, but on the second day, defense counsel said Doe was available to testify so the grand jury testimony could not be used against Smart.

Doe’s attorney then announced Doe would invoke her Fifth Amendment right and not testify, prompting extensive arguments on whether prosecutors proved Smart had wrongfully coerced her into invoking her Fifth Amendment privilege.

“After summarizing the hearing testimony and the telephone calls, the court found that defendant, ‘acting in concert with his mother, pressured the witness’s unavailability up to today through threats and chicanery, among other things, encouraging his mother to keep [Doe] away from trial,’” the decision states.

At trial, Smart claimed Doe burglarized the house and he and Verstreate were returning the property she stole when the homeowner confronted them. The homeowner also testified.

The Appellate Division, Fourth Department upheld Smart’s conviction, unanimously rejecting his contention that the trial court erred by admitting Doe’s grand jury testimony.

The Court of Appeals agreed. It also found Doe’s decision to take the Fifth “was plainly caused in part by defendant’s malfeasance.

“Initially, as the prosecutor below observed, the timing of Doe’s appearance halfway through a Sirois hearing tended to suggest that defendant had influenced her to come to court and take the Fifth,” Judge Abdus-Salaam wrote. “In doing so, Doe appeared at the perfect moment to save defendant from the impending admission of her damning grand jury testimony, thus lending some credence to the notion that she was continuing to respond to defendant’s entreaties by withholding her testimony.”

Chief Judge Jonathan Lippman concurred in a separate three-page opinion, saying things changed overnight when the absconded witness showed up on the second day of the hearing and that the trial court did not focus enough on whether her asserting her Fifth Amendment right against self-incrimination was because of Smart’s misconduct.

Smart was sentenced as a persistent felony offender to 20 years to life in prison. The Appellate Division, in a divided Nov. 16, 2012 decision, reduced the minimum by five years as a matter of discretion, finding the sentence unduly harsh; that despite his lengthy criminal record, Smart never used or threatened violence in the commission of a crime. Smart is housed at Five Points Correctional Facility in Seneca County.

Verstreate, 51, was sentenced to up to three and a half years in state prison. He was released on parole in April 2013.