Indictment Number 640/12 charges the defendant, Randy Swinson, with Burglary in the First Degree, Kidnapping in the Second Degree, Robbery in the Second Degree, Attempted Assault in the Second Degree, Unlawful Imprisonment in the First Degree, Criminal Mischief in the Third Degree, Assault in the Third Degree, and Criminal Possession of a Weapon in the Third Degree. On November 13, 14, and 16, 2012, this Court conducted a Sirois hearing. Police Officers Ryan Chan and Stephen Anderson, Detectives Matthew Fromkin and William Hamilton, Investigator Tasha Brown, and Paige Pollard-Swinson testified for the People. The defendant did not present any evidence. On November 19, 2012, the Court heard oral argument from the parties. On January 14, 2013, the People moved to re-open the hearing in order to introduce additional evidence. The defendant consented to admission of the additional evidence. The People's Sirois motion is denied.

On January 31, 2012 at approximately 11:20 a.m., Police Officer Ryan Chan, a member of the New York Police Department ("NYPD") for approximately six years, and his partner, Police Officer Stephen Anderson, a member of the NYPD for approximately five years, responded to a radio run of an assault in progress at 180 West 20th Street in New York County. Upon arriving at apartment 8H, the officers encountered the complaining witness, Paige Pollard-Swinson. Pollard-Swinson, who was crying, had visible injuries to her face, including some swelling to the right side, [*2]and a bloodied lip.^[FN1] Pollard-Swinson explained that she had had an argument with her husband, the defendant, who did not live with her, and whom she wanted to leave her apartment. In response, the defendant punched her in the face, broke her television, and took her cellular telephone.^[FN2] Pollard-Swinson was taken to Bellevue Hospital by the police, where she was treated and released. While at the hospital, she did complete a Domestic Incident Report ("DIR").^[FN3]

On February 2, 2012, Detective William Hamilton, a member of the NYPD for approximately twenty-six years, assigned as the Domestic Violence Investigator for the 13th Precinct, interviewed Pollard-Swinson over the telephone. He testified that he made an appointment for Pollard-Swinson to meet with Detective Matthew Fromkin, a member of the NYPD for approximately seven years, who interviewed her at the 13th Precinct that same day. Fromkin testified that Pollard-Swinson reiterated the events of January 31, 2012. Pursuant to his investigation, Fromkin obtained a photo of the defendant from a prior arrest.

On February 7, 2012, Pollard-Swinson called Fromkin and told him that the defendant had called her. Pollard-Swinson expressed concern that the defendant had not yet been arrested. On February 9, 2012, Pollard-Swinson called Fromkin and informed him that the defendant was on his way to her apartment. Fromkin arrived at Pollard-Swinson's apartment building, located at 180 West 20th Street, and observed the defendant sitting in a chair in the lobby.^[FN4] Shortly thereafter, at approximately 3:45 p.m., the defendant was placed under arrest and seated in the rear of a police car. Pollard-Swinson verified that the individual arrested was the same person who had assaulted her on January 31, 2012.

On February 14, 2012, Pollard-Swinson testified before the grand jury.^[FN5] She told the grand jurors that in January of 2012, she lived alone at 180 West 20th Street, apartment 8H. On January 6, 2012, she became involved in a verbal dispute with the defendant, who was staying with her, when he punched her in the chest, causing her to fall to the floor. The defendant then held a knife to her side and told her that if she didn't stop screaming, he would stab her with it. As a result of the assault, Pollard-Swinson felt a sharp pain in her chest, a pain that she continued to feel at the time of her appearance before the grand jury. Pollard-Swinson also testified that on January 31, 2012, she asked the defendant to leave the apartment, but he refused. She then spoke to her mother on the [*3]telephone, who directed the defendant, over speaker phone, to leave the apartment. Although the defendant agreed to leave, he did not. Pollard-Swinson testified that she then attempted to leave the apartment, but the defendant blocked her exit by standing in the doorway. She tried to call 911 on her cell phone, but the defendant pulled the phone out of her hand. The defendant then punched her in the face several times. Pollard-Swinson testified that as a result of the assault, she suffered a nasal fracture, and received stitches in her mouth. At the time of her grand jury appearance, Pollard-Swinson still experienced pain in her nose. The defendant also punched her television, causing it to break.

Investigator Tasha Brown, of the New York City Department of Corrections ("DOCS"), testified that she is assigned to the Legal Division and is responsible for retrieving inmate telephone call logs and recordings. Brown testified that she retrieved call logs relating to the defendant for the period of February 12, 2012 to May 3, 2012.^[FN6] During that time period, the defendant telephoned the complaining witness from jail at two different telephone numbers over 50 times. Brown retrieved and provided recordings of all of the telephone calls to the People. The People introduced twenty of those recordings into evidence at the hearing as People's Exhibits No. 11, # 13, and # 15. Each of the telephone calls lasts for approximately six minutes, as DOCS limits the amount of time per telephone call. For the majority of each telephone call, the defendant discusses his pending case and his incarceration. Although the defendant is occasionally unpleasant, he otherwise speaks in a normal, conversational tone. As is relevant here, the defendant can be heard stating: "You gonna really press charges?" "Don't do this." "I'm asking you, don't do this." "I'm pleading with you, don't do this." "I don't want to go back to jail." "Did you sign a corrob or anything like that or an agreement to press charges?" "Did you agree to press charges?" "Don't speak to them no more, don't deal with them no more." "You gotta get me out of here." "Tell them you want to stop it." "Tell the judge like an outburst that you don't want to prosecute." "Why are you not trying to dismiss this?"

After these telephone calls, the defendant was prevented by DOCS from calling Pollard-Swinson's phone number. The defendant then placed several telephone calls to his sister, where he could be heard saying: "See if the pastor can talk to this lady and tell her to stop." "She's not gonna drop the charges." During one of the telephone calls, the defendant's sister provided him with a different telephone number for Pollard-Swinson, which he then began calling. As is relevant here, the defendant can be heard saying on these calls to Pollard-Swinson: "Just say you exaggerated a couple of things."

During the telephone calls, Pollard-Swinson frequently challenges the defendant and expresses frustration with him. As is relevant here, she can be heard saying: "You don't take responsibility for your own actions." "You [sic] supposed to take responsibility for your own actions." "I'm tired of how you treat me." "You need to grow up." "I'm divorcing you." "You did something bad." "You're a liar." "Since when do you care about me?" "You don't benefit me." "I don't want to be with you." "I don't love you." "You're not scaring me." "I don't think either of us should go to trial." "I accept your apology."

On July 6, 2012, Police Officer Chan was present at the District Attorney's office when an [*4]Assistant District Attorney ("ADA") telephoned Pollard-Swinson. The ADA spoke with Pollard-Swinson over speaker phone. During the call, Pollard-Swinson informed the ADA that she no longer wanted to cooperate with the prosecution of the case.

Pollard-Swinson reluctantly testified at the Sirois hearing, after feigning inability to hear the proceedings.^[FN7] At times, she was openly hostile towards the Assistant District Attorney and the Court. Contrary to her testimony before the grand jury, Pollard-Swinson testified that in January of 2012, the defendant was not homeless, but rather was living with her in her apartment. She claimed that she only stated otherwise in the grand jury and indicated otherwise on the DIR because she was angry with the defendant. Pollard-Swinson further stated that during the incident which occurred on January 31, 2012, the defendant did not take her cell phone, or prevent her from leaving the apartment in any way. She testified that she only told the grand jurors that he had done so out of anger. Similarly, when Pollard-Swinson was confronted with prior incidences of abuse at the defendant's hands, she denied them. Pollard-Swinson testified that she still loves the defendant, wants to have a relationship with him, and is seeking to reconcile.

On January 14, 2013, the People moved to re-open the hearing in order to introduce three additional recordings of telephone calls to the complaining witness which the defendant placed from Riker's Island. The defendant consented to admission of this evidence. During the telephone calls, the defendant could once again be heard discussing the pending case and his incarceration.

This Court credits the testimony of Police Officers Ryan Chan and Stephen Anderson, Detectives Matthew Fromkin and William Hamilton, and Investigator Tasha Brown. This Court does not fully credit the testimony of Paige Pollard-Swinson.

Sirois

The People's motion pursuant to Sirois is denied.

As a general rule, out-of-court statements may not be used as evidence-in-chief against a defendant in a criminal matter, as such evidence violates the defendant's constitutional right to confrontation. See People v. Cotto, 92 NY2d 68 (1998); People v. Geraci, 85 NY2d 359 (1995). There are, of course, exceptions to this rule. Id. As is relevant here, the defendant's constitutional right to confrontation can be forfeited by misconduct. Id. In order to determine whether the defendant has forfeited that right, the court must hold a preliminary hearing pursuant to Matter of Holtzman v. Hellenbrand, 92 AD2d 405 (2d Dept. 1983), commonly known as a Sirois hearing. At a Sirois hearing, the People have the burden of proving by clear and convincing evidence that the defendant has caused a witness's unavailability through violence, threats, or chicanery. See People v. Cotto, 92 NY2d at 68; People v. Geraci, 85 NY2d at 359. Once the People have met their burden, a defendant's constitutional right to confrontation is forfeited, and he or she can no longer claim the [*5]protections generally afforded him or her by the preclusion of hearsay evidence. Id. In the instant matter, this Court finds that the People have not met their burden of demonstrating by clear and convincing evidence that the defendant's misconduct has caused Paige Pollard-Swinson's unavailability to testify at trial.

To begin, the telephone calls that the defendant made to the complaining witness while he was incarcerated constitute the People's only evidence of the defendant's alleged misconduct. While the calls may certainly constitute a separate offense, such as witness tampering or criminal contempt, they do not amount to misconduct within the meaning of Matter of Holtzman v. Hellenbrand, 92 AD2d at 405. During the twenty telephone calls that the People introduced into evidence, the defendant consistently discusses his pending case and his incarceration. Notably absent during those telephone calls, however, are threats or intimidation of any kind. Rather, the defendant, speaking in a normal, conversational tone, albeit sometimes angry, repeatedly pleads with the complaining witness to drop the charges. Perhaps even more telling is the complaining witness's demeanor during those conversations. Rather than being cowed by the defendant, she repeatedly challenges him and berates him for failing to take responsibility for his actions. Admittedly, the defendant is incarcerated at the time of the calls and is, therefore, unable to harm the complaining witness, but she unequivocally informs him that she is not afraid of him and takes him to task for his behavior. This Court can only conclude, therefore, that the telephone calls do not support the People's position at the Sirois hearing that the defendant engaged in misconduct that caused the complaining witness's unavailability at trial.This Court does recognize, however, that Sirois misconduct may encompass more than just explicit threats or overt intimidation. Indeed, there is support for the notion that Sirois misconduct, particularly in the domestic violence context, may be implicit, and may take the form of persuasion, control, coercion, undue influence, or pressure. See People v. Encarnacion, 87 AD3d 81 (1st Dept. 2011); People v. Smith, 29 Misc 3d 1056 (Kings S.C., 2010) (internal quotations and citations omitted), Although the foregoing are not threats per se, they are, nonetheless, an artful form of intimidation, tantamount to misconduct within the meaning of Holtzman, 92 AD2d at 405. The People have failed, however, to demonstrate that such is the case here. While this Court does not fully credit the testimony of the complaining witness, Paige Pollard-Swinson, particularly her feigned inability to remember certain events, this Court does credit Pollard-Swinson's testimony that she wants to have a relationship with the defendant, is seeking to reconcile, and willingly made the decision not to cooperate with the prosecution. Simply put, there is no evidence before this Court that the complaining witness did not decide, on her own, and for her reasons, to refuse further cooperation with the prosecution of the defendant. Accordingly, the People's Sirois motion is denied.

This constitutes the Decision and Order of the Court.

Dated:New York, New York

January 23, 2013

_______________________ J.S.C.