Supreme Court, New York County, April 11, 2018

Moskowitz & Book, LLP, New York City (Avraham Moskowitz of counsel), for Robert DePalo, defendant.

Joseph A. Grob, P.C., New York City (Joseph Grob of counsel), for Pangaea Trading Partners, LLC, defendant.

Peter R. Ginsberg Law, LLC, New York City (Peter Ginsberg of counsel), for Excalibur Asset Management, LLC, defendant.

Cyrus R. Vance, Jr., District Attorney, New York City (Jose Fanjul and Brian Kudon of counsel), for plaintiff.

[*2]Defendants Robert DePalo, Pangaea Trading Partners, LLC, and Excalibur Asset Management, LLC are charged with grand larceny in the first degree and other related offenses. Defendants now ask this court to permit a defense witness, Philip Parsons, who currently resides in the United Kingdom, to testify via live video pursuant to Judiciary Law § 2-b and the court's inherent powers. The prosecution opposes the application.

On June 16, 2016, the defendants asked the Honorable Ronald Zweibel, who was then presiding over this matter, to issue an order for letters rogatory. Specifically, defendants asked Judge Zweibel to request an order from a court in the United Kingdom requiring 27 witnesses to be interrogated in the United Kingdom under the supervision of the British courts. That motion was denied by Judge Zweibel on August 15, 2016.

Defendants appealed the decision to the Appellate Division, First Department. The First Department dismissed the appeal on February 27, 2017, stating "[a] 'defendant [in a criminal case] may only appeal after conviction,' and may not obtain an interlocutory appeal by claiming to invoke the court's civil jurisdiction." (People v DePalo, 147 AD3d 633, 634 [1st Dept 2017] [citation omitted].) The case was subsequently reassigned to the Honorable Mark Dwyer. On March 17, 2017, the defendants moved to reargue Judge Zweibel's ruling before Judge Dwyer, who denied the motion for reargument on May 5, 2017.

Having exhausted their avenues for letters rogatory, on June 7, 2017, the defendants moved, before Judge Dwyer for the issuance of commissions, pursuant to CPL article 680. Through{**60 Misc 3d at 269} commissions, the defendants sought permission to depose the same 27 witnesses, including Philip Parsons, in the United Kingdom. That motion was denied from the bench by Judge Dwyer on December 8, 2017. The defendants moved to reargue on December 11, 2017. On December 18, 2017, Judge Dwyer orally denied the defendants' motion for reargument. He issued a written decision on March 8, 2018, in which he explained his oral decisions of December 8 and 18, 2017.

On March 2, 2017, defendants, now before this court for trial, requested permission to allow one witness, Philip Parsons, to testify via video. The prosecution filed its opposition on March 16, 2018.

As an initial matter, this court notes that the defense has attempted to obtain the testimony of Philip Parsons five times, through various mechanisms including letters rogatory, commissions, motions for reargument, interlocutory appeal, and now this application for live video testimony. All prior applications have been denied.

Defendants claim that Philip Parsons is the only witness who can "authenticate Arjent UK's corporate books and records and explain the transfer, receipt, movement and use of investor funds" (defense mem of law, dated Mar. 2, 2018 at 1). However, through his affirmation and letter submitted to this court, Mr. Parsons has made it clear that he will not make himself available to testify in New York.

"Unless otherwise expressly provided, in any criminal proceeding involving a defendant in which evidence is or may be received, both the people and the defendant may as a matter of right call and examine witnesses, and each party may cross-examine every witness called by the other party." (CPL 60.15 [1].) "Although [the right to present witnesses] has been characterized as[*3]'fundamental,' even at trial it is not absolute and may yield to policy considerations such as the State's interest in the orderly conduct of trials." (People v Chipp, 75 NY2d 327, 336-337 [1990] [citation omitted].) A defendant "does not have an unfettered right to offer testimony that is . . . otherwise inadmissible under standard rules of evidence." (Taylor v Illinois, 484 US 400, 410 [1988].)

Defendants argue numerous times in their various applications that they have a constitutional right to choose their witnesses and while there is no disputing that fundamental right,{**60 Misc 3d at 270} defendants go a step further and assert that "even if [others] could provide testimony similar to that which Mr. Parsons will provide, which they cannot, the Defendants have the right to choose the witnesses they want to call and determine who best will advance their case" (defense reply mem, dated Mar. 16, 2018 at 8). Here, defendants seek to introduce the live video testimony of Philip Parsons.

What the defense seems to overlook is that "[t]elevised testimony requires a case-specific finding of necessity; it is an exceptional procedure to be used only in exceptional circumstances." (People v Wrotten, 14 NY3d 33, 40 [2009].) "Live televised testimony is certainly not the equivalent of in-person testimony, and the decision to excuse a witness's presence in the courtroom should be weighed carefully." (Wrotten, 14 NY3d at 40.) Thus, while the defense has every right to present a thorough and complete defense and every right to choose who it will call as witnesses, it is the defense which now comes before this court seeking it to allow "an exceptional procedure" which is "to be used only in exceptional circumstances." (Id.)

To afford a defendant every opportunity to present a thorough defense, a court, through its inherent powers and pursuant to Judiciary Law § 2-b, is vested "with the authority to fashion a procedure . . . necessary to carry into effect the powers and jurisdiction possessed by it." (Wrotten, 14 NY3d at 36, 40; Judiciary Law § 2-b [3].) However, what is considered appropriate under the unique facts and circumstances of a particular case is left to the sound discretion of the trial court. In his unsworn affirmation, Mr. Parsons states:

"Matters involving Arjent UK have already disrupted my life in significant ways. As a result of being employed at Arjent UK, and then because of the ensuing, highly publicized prosecution of Mr. DePalo, my business reputation was tarnished and this led me to being out of work for an extended period of time after I left Arjent UK. I finally found new employment and I am not willing to disrupt my current job and expose myself to further unwanted media attention by coming to New York to give evidence at trial. Quite simply, I cannot sacrifice what I have managed to rebuild by coming to New York and appearing at Mr. DePalo's trial." ([Unsworn] affirmation of Philip Parsons, dated Mar. 17, 2017, ¶ 12 [emphasis added].)

Choosing not to travel to New York so as not to disrupt his new job or taint his reputation is not the type of exceptional{**60 Misc 3d at 271} circumstance the Court of Appeals contemplated when it ruled that a court may authorize a witness to testify via live, two-way video. In Wrotten, the Court allowed the complainant to testify via two-way video from California because he was "at that time 85 years old, frail, unsteady on his feet, and with a history of coronary disease [and] could not travel to New York without endangering his health, and was therefore unavailable." (Wrotten, 14 NY3d at 37; see also People v Giurdanella, 144 AD3d 479 [1st Dept 2016] [the court allowed live video given the unusual circumstances of the case as the complainant was in Egypt, which was in a state of political upheaval, and when he attempted to board his plane to come to New [*4]York to testify, the Egyptian authorities prohibited him from leaving the country because, as an Egyptian citizen, the complainant had not fulfilled his legal requirement of serving in the military].)

Here, the defense has failed to show an exceptional circumstance that would compel this court to allow the witness, Mr. Parsons, to testify via live video.

Aside from the inadequate reason stated for Mr. Parsons' refusal to testify in New York, the defense has also failed to demonstrate that Mr. Parsons, as a fact witness, would present competent and admissible evidence at trial. (Parham v Griffin, 86 F Supp 3d 161 [ED NY 2015].)

The People assert that a review of Mr. Parsons' proffer meeting with the District Attorney's Office as well as two subsequent filings in connection with the defense applications makes clear that Mr. Parsons' testimony would be based in large part on inadmissible hearsay and/or on information obtained directly from defendant DePalo. Based upon this court's own examination of the submissions, it appears that the People are correct. In his affirmation dated March 17, 2017, while defendants sought reconsideration of their motion for letters rogatory, Mr. Parsons stated in substance that investor funds were used in a manner consistent with the private placement memoranda (PPM). Yet in his letter dated February 2, 2018, in support of the defense motion for live video testimony, Mr. Parsons admits that he has not directly reviewed the PPM. The People further allege that the defendants committed the charged crimes beginning in 2010, with the majority of the 23 counts completed in 2012. Mr. Parsons began working for Arjent UK in December of 2013. At most, Mr. Parsons could only personally testify to a limited time frame. Testimony about anything occurring prior{**60 Misc 3d at 272} to December 2013 would almost certainly constitute hearsay. Particularly since at his proffer meeting with the District Attorney's Office in May 2015, Mr. Parsons essentially admitted, in substance, that he has no personal knowledge regarding the underlying transactions. In fact, of the 23 counts in the indictment, only counts 10, 11 and 12 arguably include the time frame covered by Mr. Parsons' employment. Defendants claim that only Mr. Parsons "can authenticate Arjent UK's corporate books and records and explain the transfer, receipt, movement and use of investor funds," yet it is not clear at all to this court how Mr. Parsons is qualified to do just that much less why he is uniquely qualified.

This court notes that there are other impediments to defendants' application and it is troubled by the apparently evolving and even conflicting arguments offered by the defense in its pursuit first, for letters rogatory, then for commissions and now for live video testimony.

In his decision, Judge Dwyer noted that

"the defense initially sought Letters Rogatory, in part, on an assertion that [27 witnesses presumably including Mr. Parsons] would not appear to be questioned unless served with British process compelling them to appear. Thereafter, the defendants sought the issuance of commissions because 'at least a few of the witnesses' now 'seemingly are willing to appear voluntarily to testify in the United Kingdom.' "

In his letter dated March 17, 2017, Mr. Parsons states "I am not willing to disrupt my current job and expose myself to further unwanted media attention by coming to New York to give evidence at trial. Quite simply, I cannot sacrifice what I have managed to rebuild by coming to New York and appearing at Mr. DePalo's trial." Yet, in his affirmation dated February 20, 2018, Mr. Parsons states that the reason he cannot testify in New York is because "of professional commitments." It certainly appears that the defense arguments in support of their motion are built on shifting sand.

Defendants' request to allow the live video testimony of Mr. Parsons is denied. Even if this court were to fully credit each and every argument presented by the defense, it would still be compelled to find that the defense has failed to establish the exceptional circumstances required for the use of live video{**60 Misc 3d at 273} testimony, an exceptional procedure to be used only in limited circumstances.