The defendant is charged with Strangulation in the Second Degree, two counts of Assault in the Third Degree, and two counts of Criminal Obstruction of Breathing or Blood Circulation. These charges are based on allegations that on two separate dates, July 25, 2020 and October 25, 2021, the defendant choked and assaulted his wife. When the NYPD responded to the complainant's call for another dispute with the defendant on November 24, 2021, the defendant was arrested for the prior incidents.^[FN1]

After the complainant testified before the grand jury on November 30, 2021, the defendant was indicted. A year and a half later, the People advised the Court that the complainant was no longer willing to cooperate with the prosecution and requested a Sirois hearing to show proof that the defendant's misconduct had secured her unavailability at trial. The Court granted the motion for a hearing on July 7, 2023.

After considerable delay discussed infra, the Court conducted a Sirois hearing over three days beginning on February 27, 2025. The People called five witnesses at the hearing: Detective Investigators Primo and Ekeanyanwu of the Kings County District Attorney's Office; Police Officer Christian Calvagna; Forlain Toran of the New York City Department of Corrections Subpoena Unit; and Assistant District Attorney Jessica Soares. The People introduced into evidence call logs from the New York City Department of Correction (DOC) containing a) all calls made using the defendant's PIN between November 25 and December 25, 2021; b) all calls to the complainant's phone number between December 25, 2021 and April 28, 2022; and c) the audio recordings of eighteen calls between the defendant and the complainant over that time period. The People also introduced body-worn camera footage from Officer Calvagna that [*2]contained voice exemplars of the defendant and complainant, T-Mobile phone records between November 25, 2021 and February 14, 2023 for both the defendant and complainant, and the transcript of the complainant's Grand Jury testimony. The defendant did not call any witnesses but cross-examined the People's witnesses and introduced a transcript of the defendant's preliminary parole revocation hearing.

As set forth below, the Court finds that the People have shown by clear and convincing evidence that the defendant's misconduct secured the complainant's unavailability for trial. Accordingly, the People's motion to use the complainant's Grand Jury testimony in their case in chief is GRANTED.

The defendant was held in custody from his arrest on November 24, 2021 until his bond was paid on February 2, 2022. During that time period, the complaining witness testified twice regarding the underlying allegations: in front of the grand jury on November 30, 2021 and in front of a parole hearing officer on December 9, 2021.

After his release on February 2, 2022, the defendant was taken into custody again on April 6, 2022, this time on an arrest warrant from the Bronx. The defendant was indicted in the Bronx and charged with Attempted Murder in the Second Degree based on allegations he had assaulted an inmate in December, 2021 during his initial detention under this indictment. The defendant was later released on April 28, 2022 after paying bond for the second time.^[FN2]

After his arraignment on the indictment in this case, the matter was adjourned multiple times over the next seven months for the People to comply with their discovery obligations and for motion practice. A trial date was set for October 12, 2022. After defense counsel filed a motion to dismiss for speedy trial violations, the matter was adjourned again for motion practice. After its conclusion, another trial date was scheduled for March 2, 2023.

On March 2, 2023 the People advised they were not ready for trial and that they intended to request a Sirois hearing: their motion was filed on March 27, 2023. Prior to the Court's decision, the defendant retained a new defense attorney who later conceded a Sirois hearing was warranted. On July 7, 2023, the Court granted the Sirois hearing and it was scheduled to start on July 17, 2023.

Over the next year and a half, the Sirois hearing was repeatedly re-scheduled — on thirteen separate dates — and on each of those dates, defense counsel was not ready to proceed due to other trial or hearing commitments or personal matters. On two occasions the People were also not ready to proceed. The Sirois hearing commenced on February 27, 2025, continued on March 28th, and concluded on April 2, 2025.

As a preliminary matter, the Court finds the witnesses were credible. The testimony and exhibits presented at the hearing established the following facts.

The People presented evidence of the phone numbers used by the complainant and the defendant over the relevant time period, and examples of the defendant's and complainant's voices from Officer Calvagna's body-worn camera footage: these facts were not disputed at the [*3]hearing. The DOC investigator testified that an inmate at a DOC facility can make an outgoing phone call using his unique ten-digit "book and case" number along with a PIN, and that inmates are warned by posted notices and an audio message on the call itself that all calls may be recorded for law enforcement purposes. The investigator testified that it is possible, though not permitted, for inmates to make outgoing calls using another inmate's PIN and book and case number.

On November 30, 2021, the complainant testified before the grand jury that she was with her husband, the defendant, in a parking lot on July 25, 2020 when he placed his hands around her neck and applied pressure, pulled her hair out causing a bald spot, and slammed her head into a car. She also testified that on October 25, 2021, he woke her up in bed, lunged at her, threw her on the floor, placed his hands around her neck and applied pressure until she lost consciousness. She testified that during the second incident, the defendant said he was going to kill her and warned her not to call out for help.

About a week later, the complainant also testified at the preliminary hearing for the defendant's parole violation: the hearing concerned only the allegations from October 25, 2021. In her testimony at the preliminary hearing, the complainant described the choking and assault from that date in substantially the same way as in the grand jury. After she testified on December 9th, the hearing was adjourned for the completion of cross-examination to December 20th : when the parole officer and defendant were not available on that day, it was adjourned again to December 23rd (see Defense Ex. A, Tr. dated Dec. 9, 2021 and Dec. 20th, 2021).

On December 22nd, the defendant called an unidentified man from Rikers and discussed the complainant's testimony at the parole hearing: on the recorded call, the defendant tells the unidentified man that the complainant came to his hearing, that she is "trying to fuck me over," and while he wants to know why, he is concerned that if he calls her "she's gonna bullshit" and "she's gonna set me up" (People's Ex. 3, G2). The defendant complains that she is being "vindictive" and wonders why she won't just give him a divorce (Id.).

On December 23rd, the parole officer reported to the hearing officer that the complainant was unavailable for continued cross-examination: the explanation provided was that she could not get the needed video-conferencing app for financial reasons and she could not appear in person due to COVID restrictions (see Defense Ex. A, Transcript dated Dec. 23, 2021). As a result of her nonappearance, the defendant's parole warrant was lifted (Id.).

Two days later, on December 25th, the defendant called the complainant twice from DOC (People's Ex. 1; People's Ex. 3, E1- E2).^[FN3] Most of their conversation is concerned with trying to pay his bail bond and the tone of their interactions is mostly cordial. At one point, the complainant offers that she will "try to sell that stuff to get some money," the defendant corrects her quickly, saying "sell what stuff, what you talking about? I hope you're not doing anything stupid. Someone else will call you and tell you what they need, if anything, just chill" (People's Ex. 3, E1); he also directs her to "expect a call," and she promises "I have my phone, I'll wait for you to call back" (Id.). The defendant describes the poor conditions at his jail and bemoans that the holidays are making bail difficult as bondsmen were scarce; the complainant tells him she is sorry he is going through that right now. The complainant also says she feels "lost right now," [*4]that she has "lost everything," and her voice wavers as she talks about being alone for the holidays. The defendant tells her she has family members and "a lot of friends." Just before the second call ends, the defendant becomes upset and accuses the complainant of having something to do with another man, saying "the dude who got all, that you made it seem like it wasn't," after which the call abruptly ends (Ex. 3, E2).

Between the defendant's release on February 2, 2022 and his re-arrest two months later, the defendant called and sent text messages to the complainant approximately 413 times (People's Ex. 5). Over the same time period, the complainant called and sent text messages to the defendant approximately 264 times (Id.). Since these calls were made while the defendant was released, there is no information as to their content.

The frequency of the defendant's contact with the complainant varied. For example, between February 7 and 13, 2022, the defendant contacted the complainant every day, often multiple times, including seven calls on February 13th; however, the records do not show any contact between these numbers between February 24 and March 18, 2022 (Id.). The defendant resumed calling and texting the complainant on March 19th and continued to do so every day until he was re-incarcerated on April 6th, averaging twenty times daily. The complainant also regularly contacted the defendant during this time, an average of thirteen times daily.

At least some of these calls are substantial in length. On some days, the intensity of the defendant's contact was high — texting and calling the complainant over thirty times or calling multiple times within short succession: for example, on March 29th, the defendant called her ten times within a ten-minute period starting at 9:00 p.m. (Id.).

When the defendant was back in custody after his arrest in the Bronx, the complainant's number was called thirty times from DOC, again using other inmates' PINs (People's Ex. 1).^[FN4] The People introduced thirteen audio recordings of these calls at the hearing (People's Ex. 3, E1-E15). None of the thirteen recorded calls contain any explicit threats by the defendant to the complainant should she proceed with the case. Further, the defendant does not explicitly tell her not to cooperate with the prosecution.

The defendant's main topic of conversation in nearly all the recorded calls during his re-incarceration is the need to pay his bail. The defendant repeatedly describes the poor conditions in his facility, his own medical problems, and disputes with staff and other inmates. He tells the complainant he is "scared to death" to be in custody and the complainant tells him she is sorry for what he is going through (Id. at E4). At the beginning of many calls, the complainant is quick to tell the defendant she did not answer the phone because she did not hear it ringing or that she was in the shower, and repeatedly assures him she is trying to get him out of jail in response to his questions.

After the defendant was in custody for about a week, he tells the complainant he "can't do this," in an emotional tone of voice (Id. at E10). He also tells the complainant that the prosecutors from the Bronx and Brooklyn cases are speaking to one another and asks her to speak with his attorney (Id.). After the defendant asks a second time, the complainant agrees that the defendant can give her number to his attorney. She also tells the defendant that he has made the case involving her look worse because of the arrest in the Bronx, but she promises to call and "see what [she] can do" (Id.). The defendant tells her he misses her "so much", asks her [*5]to be safe, and she promises to "support him and be there for him" (Id.) On this same call, they rehash an old argument over him removing her picture from Instagram: the defendant says "please, please, I'm begging you," that "it's not a good time," and further that he is sorry, he messed up, and he wishes he could speak to her "properly" and "had the freedom to explain it" (Id.).

On a call to the complainant two days later, the defendant tells the complainant he is in a hospital unit and again describes the difficult conditions in DOC (Id. at E11). After some further discussion,^[FN5] the defendant insists he has taken accountability for his actions and the complainant becomes frustrated with him, both raising their voices. The defendant tells the complainant he is only yelling in response because he "is trying to get through" and tells the complainant he loves her before the call time runs out (Id.).

In the remaining calls, the defendant continues to discuss the difficult conditions in custody, thanks her for taking his calls, asks her if she is all right, tells her he will put more effort into their relationship and his behavior, assures her he will not be the "same person" he has been, and admits he has made unspecified mistakes in their relationship (Id., E13) During a call approximately two weeks before making bail, the complainant begins crying, saying she feels alone, tired, and as if does not have family or friends (Id., E14). The defendant attempts to comfort her and tells her he is sorry she is upset (Id.)

The defendant was released from custody after paying bond on April 28, 2022. The phone records indicate the defendant called and texted the complainant approximately 960 times between his second release from custody on April 28 and July 4, 2022: over the same time period, the complainant called and texted the defendant's phone number approximately 693 times.

Contact between these numbers then stop for the next four months - from July 5 to October 24, 2022. Then the defendant and complainant return to high frequency contact over the next month: between October 24 and November 24, the defendant called the complainant nearly every day, totaling about 115 calls and the complainant called and texted the defendant about 105 times. Again, the contact between these phone numbers stopped abruptly: after December 7, 2022, there is no contact over the next few months with the exception of one unanswered call from the defendant on February 4, 2023.

On February 19, 2023, ADA Katrina Gomez and Detective Investigators Primo and Ekeanyanwu went to the complainant's home and asked if she wanted to go forward with the case against the defendant. At the hearing, Investigator Primo testified that the complainant said she did not want to proceed because she "feared for her life," that the defendant was a "dangerous person" and that he might tell other people in Brooklyn to harm her if she did so (Tr. at 10-12). She also told the investigators that the defendant had called her multiple times when he was in custody, and from different phones after he was released, and that these calls made her afraid (Id. at 10). Further, when the investigator asked why she answered the defendant's calls, she told them she was afraid if she did not answer the calls she would get hurt (Id. at 17). She also told them that she had been afraid to go to her employment at a car dealership in case he [*6]would show up there (Id. at 22).

On March 28, 2025, ADA Jessica Soares was present for a call on speaker phone between ADA Katrina Gomez and the complainant. ^[FN6] ADA Soares testified that the complainant was asked for her position about testifying (April 2 Tr., p. 19-20). The complainant stated she did not want to testify at trial against the defendant and that she was afraid for her life and her family's life because of repeated phone calls (Id. p. 17).

The Confrontation Clause of the Sixth Amendment to the United States Constitution requires, in all criminal prosecutions, the right to confront all witnesses who testify (see Melendez-Diaz v. Massachusetts, 557 US 305, 309 [2009]; Davis v. Washington, 547 US 813, 821 [2006]; Crawford v. Washington, 541 US 36, 50 [2004]). Generally, out-of-court statements, such as Grand Jury testimony of an unavailable witness, are inadmissible hearsay and their introduction at trial violates the defendant's right to confrontation (see People v. Cotto, 92 NY2d 68, 77 [1998]; People v. Geraci, 85 NY2d 359, 365 [1995]; People v. Encarnacion, 87 AD3d 81, 86 [1st Dept 2011]).However, these challenges to the admission of such hearsay — both as against evidentiary rules and violating the constitutional right to confrontation — cannot be raised by the defendant "where it has been shown that the defendant procured the witness's unavailability though violence, threats or chicanery" (People v. Smart, 23 NY3d 213, 220 [2014] quoting Geraci, at 365-366).

In order for this exception to apply, the People must prove the defendant procured the witness's unavailability by clear and convincing evidence (see Geraci at 369; People v. Byrd, 51 AD3d 267 [1st Dept 2008]). The People may rely on circumstantial evidence to meet this burden, given that individuals will rarely openly engage in such conduct (Geraci at 369; Cotto at 76-77; Encarnacion at 87). The cumulative evidence and inferences which logically flow from such evidence must support the conclusion, by clear and convincing evidence, that the defendant was responsible for the witness being unavailable at trial (Geraci at 370).

While explicit threats or directives not to testify may readily satisfy this burden, their absence is not dispositive that no misconduct occurred, especially where the witness is an intimate partner in a domestic violence case. As the Smith decision stated:

[I]t is not only outright threats that can demonstrate the intent to stay a witness' cooperation, but persuasion and control by a defendant, coercion, undue influence or [*7]pressure, and repeated telephone calls. The power, control, domination and coercion exercised in abusive relationships can be expressed in terms of violence, certainly, but just as real in repeated calls sounding expressions of love and concern. Orders of protection are therefore issued by courts as much to prevent assaults on the psyche of a vulnerable victim as to prevent assaults on her person.

(Id. at 1058 [internal citations omitted]). Relevant caselaw illustrates the myriad ways it has been shown that defendants used emotional manipulation and/or repeated contact to pressure their intimate partners not to testify (e.g. People v. Jernigan, 41 AD3d 331 [1st Dept 2007][defendant's voice messages to complainant imploring her not to testify and a record of 59 additional calls sufficient to establish causal relationship between misconduct and witness's unavailability]; People v. Leggett, 107 AD3d 741 [2d Dept 2013][defendant asking his mother if she had contacted witnesses against him prior to trial and directly calling a witness immediately prior to his unavailability sufficient to demonstrate causal relationship]; People v. Major, 251 AD2d 999 [4th Dept 1998][defendant's asking his mother "how can you testify against me and put me away for the rest of my life" sufficient to demonstrate pressure resulting in witness's unavailability]).

Indeed, even where the content of the communications is unknown, the sheer volume of calls to a complainant may support a finding of pressure or coercion (see People v. Khan, 26 Misc 3d 1211[A] [Sup Ct Queens Cty 2010][at least 100 calls made to complainant and her visits to the defendant at Rikers showed defendant caused her unavailability]; People v. Turnquest 35 Misc 3d 329 [Sup Ct Queens County][348 calls to the complainant over three and a half months]; People v. Bernazard, 50 Misc 3d 1209[A] [Sup Ct Queens County 2015][67 calls to complainant over a month "alone . . .without knowing their content, could be sufficient"]). Moreover, the defendant's willingness to violate the order of protection by itself "sends a loud and clear ominous message to [the complainant]", as it demonstrates his defiance or disregard of the law (Turnquest, at 343; accord Bernazard at *5)

As a preliminary matter here, the Court finds the People have shown that the complainant is currently unavailable to testify. The testimony at the hearing from the detective investigators establishes as of February 2023, the complainant was no longer willing to cooperate with the prosecution, and her position had not changed as of March 2025.

Further, the Court finds the People have met their burden of showing by clear and convincing evidence that the defendant's barrage of phone calls and texts to the complainant in violation of the order of protection caused the complainant to stop cooperating with the prosecution.

First, the volume of calls made by the defendant to the complainant is extreme: the hearing record shows 1,108 calls and messages to the complainant over a twelve-month period from December 2021 to December 2022,^[FN7] all in violation of the order of protection. This number far exceeds the threshold level of contact other courts have found indicative of improper [*8]pressure (see e.g. Smith, 29 Misc 3d 1056; Turnquest 35 Misc 3d 329). Moreover, these calls were not spread out evenly, but occurred in sporadic bursts of high frequency, as set forth below:

Thus, the intensity of the communication during the periods where the defendant was contacting the complainant was high: 1,108 calls occurred over 143 days.^[FN8]

Second, the substance of the recorded calls admitted at the hearing reveal the defendant's efforts to pressure the complainant. In one call, he directly asks her to speak to his lawyer. In all the other calls, he is emotionally manipulative, implicitly conveying that she must get him out of the situation: he complains of the conditions in custody, telling her of the physical danger and his psychological strain; he expresses his love and affection for her, tells her he misses her; and he promises to adjust his behavior in the future, "begging" her to understand his situation and admitting to past mistakes. The purpose of these communications during his incarceration were not limited to obtaining bail, rather "the defendant's push and pull on the complainant emotionally in his calls demonstrates his attempt to enlist her aid, manipulate her to 'stand by him' . . . through a combination of sweet talk, begging, guilt trips, [and] declarations of love" (Bernazard at *5). Moreover, the calls did not abate once the defendant had been released: he called and texted the complainant approximately 960 times in the two and a half months after his bail was paid.^[FN9] The record at the hearing suggests the timing of the calls are related to the progress of the prosecution: there is a break of several months before [*9]the calls resume for one month at a high volume once the trial date was set in October, 2022.^[FN10]

Of course, the record does not show the content of the calls between the defendant and the complainant once he was released. But "the sheer number of calls alone, even in the absence of proof of actual conversations, sends a loud and clear ominous message to [the complainant], given that each individual call constituted an attempt to violate the extant order of protection" (Turnquest, at 761; accord Bernazard *5 ["defendant's brazen and repeated defiance of a full order of protection issued by the court can be viewed as an implicit threat to the complainant, since it shows he is refusing to obey the law"]. Here, the message was received: the detective investigators and the ADA all testified that the complainant cited the bombardment of phone calls from the defendant — from multiple numbers — as the reason why she is afraid to testify against him.

This finding is not undercut by the evidence that the complainant also contacted the defendant, answered his calls, expressed her empathy for his situation at Rikers, and shared in expressions of tenderness towards him. The complainant reported to the investigators that she was afraid not to answer the defendant's calls, and that assertion is borne out by the recorded calls where she is quick to explain any delay in her response and repeats her willingness to be available for calls. Communications initiated by the complainant, as well as her expressions of love and concern, must be considered in the context of her testimony before the grand jury and the parole hearing officer where she alleges the defendant physically assaulted and choked her, and threatened her life if she called out for help, all perpetrated by the defendant.

In the instant prosecution, the complainant was initially cooperative, testifying twice against the defendant. After receiving over 1,000 calls from him, she refused to cooperate further because the calls made her afraid for her life, a position she maintains to this day. On this record, the People have met their burden of showing by clear and convincing evidence, both direct and circumstantial, that the defendant coerced, pressured, and improperly used his relationship with the complainant to secure her unavailability for trial.

Accordingly, the People shall be permitted to use the complainant's Grand Jury testimony in their case in chief.

The foregoing constitutes the opinion, decision, and order of the court.