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CRIMINAL COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: PART JURY 1
--------------------------------- --x
THE PEOPLE OF THE STATE OF NEW YORK,
DOCKET NOS.
- against -
2008NY053104
2008NY053105
CASSANDRA MALANDRI AND
FALYNN RODRIGUEZ Defendants.
--------------------------------x
100 Centre Street
New York, New York 10013
January 20, 2010
BEFORE:
HONORABLE SHAWNDYA SIMPSON
A P PEA RAN C E S:
(Same as previously noted.)
(Whereupon, the following takes place
on the record in open court in the presence of
the Court, the district attorneys, the defense
counsel and the defendants:)
COURT OFFICER: Case on trial continued. You
guys can step up, Ms.Malandri and Ms. Rodriguez.
THE COURT: What was the reason for the
delay, Counsel?
MR. MOSER: I spoke to my client. She
apologizes for being late. I just asked her what
happened. She said she was sick this morning. She
says that stress has gotten the best of her. She's had
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some anxiety, that she's passed out, and she's here.
hope it don't happen again. I've advised her that -
THE COURT: I hope not.
MR. MOSER: Warrants can be issued. Bail can
be set. She understands.
THE COURT: All right.
What's your name, again?
MR. REED: Darryl Reed for the People,
R-E-E-D.
THE COURT: Anything before I render my
decision?
MR. MOSER: No, thank you.
MR. STRAZZULLO: Ditto, Your Honor.
THE COURT: All right.
This is in respect to the People's -- to the
defense motion to dismiss. It may appear that the
People are putting a higher burden on themselves, but
that is not what controls.
Although the use of the conjunctive "and"
provides that the People will prove more than that
required by the statute, it does not bind the People to
prove all three acts. "Where an offense may be
committed by doing anyone of several things, the
Prosecutor's Information may, in a single count, group
them together and charge the defendant with having
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committed them all, and conviction may be had on proof
of the commission of anyone of the others." And
that's governed by People v. Charles.
The People need not prove allegations in the
Prosecutor's Information that are extraneous to the
material elements of the ciime.
Much like a grand jury indictment, a
Prosecutor's Information serves three purposes: To
give the defendant a fair notice of what he is accused,
that the crime to be proved is the same as that which
was charged/ and to protect against double jeopardy by
specifying the crime for which the defendant is tried.
The facts to be proved in this case remains the same.
The Prosecutor's Information in this case does not
change the theory of the case and does not prejudice
the defendant.
CPL 100.45(2) proving that rules governing
indictments under CPL Section 200.70 applies to
Prosecutor's Information. The rule that Appeal Statute
is to be strictly construe does not apply to our Penal
Law, but all its provisions must be construed according
to the fair/ in part/ to promote justice and effect the
objects of the law.
In applying this statute/ we are to construe
-:... .....-. ..-.
the indictment or, in this case, the Prosecutor's
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that, whatever else took place, there was an agreement
at that point to engage in sexual conduct, and they're
going to try to do that through Ms. Rodriguez alleging
saying three things in response not to the undercover,
but in response to Alexia. She states my client -- or
she's going to alleged -- well, we're going to hear the
undercover, but he states in his statement; it's going
to be shown by the People, that she allegedly says,
nOh, he looks like he likes to have a good time." Then
my client goes on to state, "Well," -- and makes the
statement that the prosecutor stated, in response to a
question, "I'm the only one that tosses Alexia's
salad." And then says, "I have my own stuff." And
that's it.
How you can leap from three lines in a
conversation that takes place on three pages to "We're
going to engage in a threesome for $5,000," is not
proveable
t
and they can't prove that by proof beyond a
reasonable doubt.
They work in a nightclub. My client w o ~ k s in
a dance club. There's a lot of flirtatious activity
going on. The night club is designed to rip off men
coming into it; spending moneYt obviously, for things
being said. But to leap from three things that
Ms. Rodriguez states, to guilty beyond a reasonable
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doubt that she offered to engage in sex when there was
no time they were going to meet, no place that they
were going to meet, no location they were going to
meet, never an exchange of money whatsoever, never a
follow-up conversation, and an arrest one month later,
and that's guilty by proof beyond a reasonable doubt?
Judge, after you hear the evidence in this
case for Ms. Rodriguez, I don't believe that there's
going to be any doubt in your mind on that the People
can't prove their case by proof. beyond a reasonable
doubt.
I heard yesterday the People state something
about an agreement to meet in a Hilton Hotel.
Your Honor, I submit that I don't know how
that evidence can even come into play at this point.
have the entire conversations, what took place, Rosario
was served, and there is not a mention at one time of
anybody having a subsequent conversation, especially
Ms. ,Rodriguez to have any subsequent conversation with
any undercover or any person that she met during that
evening to state that they were going to meet at a
certain place, at a certain time, at a certain date.
Never took place with Ms. Rodriguez. She was not even
part, this Court is going to find out, of any
conversations which took place between Ms. -- between
I
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the co-defendant and the undercover. The large
majority of the entire conversations and any mention of
other then what I just said, were conversations not
between Ms. Rodriguez, but were conversations between
the co-defendant and the undercover.
Thank you, Judge.
MR. STRAZZULLO: Good morning, Your Honor.
As you well know, by name is Salvatore
Strazzullo, and I do represent Ms. Malandri.
Your Honor, simply stated and put, the People
will not be able to prove this case beyond a reasonable
doubt. At the end of the day, at the end of their
case, the People will not even come close, and I'm just
going to structure why they won't come even close.
Their own evidence is going to show that at
the time of these allegations towards Ms. Malandri,
they waited a month, one month, to arrest her. A
month, an accusation of prostitution. Something of
moral turpitude. Something of just hitting down below
the belt. An accusation of prostitution they wait a
month. But even looking at the month, Your Honor,
there was no contact whatsoever from my client to the
undercover officer regarding consummating some
agreement, some whatever they're trying to prove. No
contact whatsoever, Your Honor, in a months time. One
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you just to look at what was said between the
undercover and my client.
Lastly, Your Honor, if their case was so
tight, why wasn't there an audio? A simple audio
recording of that night in question would be a slam
dunk for them. Why wouldn't this undercover who has
this 15, 20 years, 10 years of experience, in this type
of environment, these type of allegations, why wouldn't
he record the conversation? You know why, Your Honor?
Because there wasn't ever an agreement, and they're not
going to be able to prove their agreement for what he
said-she said.
Thank you, Your Honor.
THE COURT: People?
MS. ALPERT: Your Honor, we would like to
call our first witness.
THE COURT: Who is that?
MS. ALPERT: His name is Det. Vincent Kong.
COURT OFFICER: Witness entering.
Step up to my partner.
Detective, if you would, please take the
stand. Remain standing. Raise your right hand.
Do you swear or affirm that the testimony you
are about to give is the true, the whole truth, and
nothing but the truth?
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THE WITNESS: Yes.
COURT OFFICER; In a loud clear voice,
please, state yopr name?
THE WITNESS: Vincent Kong.
COURT OFFICER: Shield and command?
THE WITNESS: That's detective. Narcotics
Borough Manhattan North. Shield is 4149.
MS. ALPERT: Your Honor, can we just have one
moment while we -
THE COURT: I'm sorry. Detective, spell your
last name for me.
THE WITNESS: K-O-N-G.
MR. MOSER: Judge, I'm sorry. I know you
asked for the spelling of his last name. I didn't hear
it.
THE COURT: K-O-N-G.
MR. MOSER: Thank you.
DIRECT EXAMINATION
BY MS. ALPERT:
Q Good morning, Det. Kong, and Your Honor.
A Good morning.
Q Det. Kong, I'd like to start by asking you to tell
the Court your name, shield, and present command?
THE WITNESS: Okay.
MS. ALPERT: And just for the record, it's
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Det. Kong - For People - Direct (Ms. Alpert)
ADA Tami Alpert, for the People, A-L-P-E-R-T.
A
My name is Vincent Kong. I'm a detective. Shield
No. 4149, Narcotics Borough Manhattan North.
Q
And how many years have you been with the New York
City Police Department?
A
Approximately, 10 1/2 years.
Q
And how long have you been at your present
command?
A
Approximately, six months.
And prior to this present command what was your
Q
command?
A I was in Vice.
Q
How long were you in Vice?
A A little over two years.
Q
So, is it accurate to say that you were in Vice
during the Summer of 2008?
A Yes.
Q
And how many -- I'm sorry. So in total, how many
years. were you in Vice, and now in your present command of
narcotics?
A Approximately, three years now.
Three years. Was there a special subdivision of
Q
Vice that you were involved with?
A Yes.
Q
What was that led?
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Det. Kong - For People - Direct (Ms. Alpert)
A
I was in a Club Team.
Q
And would you briefly explain what this Club Team
does?
A
The Club Team enforces underage operations who
conduct State liquor door inspections, and bar and club
inspections.
Q And how many investigations do you think you're
involved in while in Vice, just a rough estimate?
A Approximately, I would say, 50.
Q
And how many of these involved undercovers?
A Approximately, alISO.
Q And were any of these undercover investigations,
or otherwise investigations, prostitution related?
A Some, yes.
Q Do you have' a rough estimate of how many you think
they were?
A Approximately, I'd say maybe, 20.
Q Now, turning your attention to the Summer of 2008,
were you involved investigation of the Hot Lap Dance Club?
A Yes.
Q And where lS that club located?
A
It's located at 344 West 38th Street, in
Manhattan.
Q Is there a specific room, do you remember?
A Yes, Room 501.
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Det. Kong - For People - Direct(Ms. Alpert)
Q
And is that here in the City and County of New
York?
A Yes.
Q On the evening of July 17th, 2008, through the
early morning hours of July 18th, 2008, did you execute a
search warrant at that location?
A Yes.
Q
And at what time was that, approximately?
A
Approximately, 11:30 p.m.
Q
And did you make any arrests pursuant to that
investigation?
A Yes.
Q
Among the people arrested were Cassandra Malandri
and Falynn Rodriguez arrested?
A Yes.
Q And do you see them in the court today?
A Yes.
Q Could you please identify them by an article of
clothing?
A Falynn Rodriguez is wearing a black jacket with
glasses. Cassandra Malandri the purple sweater.
MS. ALPERT: I'd like to show that
Det. Kong identified the two defendants.
THE COURT: Indicating both defendants for
the record.
46
Det. Kong - For People - Direct (Ms. Alpert)
1
identification being shown to the witness.
2
(Whereupon the People's 1 and 2 for
3
identification were published to the witness.)
4 Q Det. Kong, do you recognize those -
5 A Yes, I do.
6 Q Two videos?
7 A Yes, I do.
S Q Do you mind if I get them back to see which is
9 which. Sorry. Thank you.
10 MS. ALPERT: For the record, the short video
11
is now marked as Exhibit I, People's Exhibit I, and the
12
longer full length version is Exhibit 2.
13 Q
Det. Kong, how do you recognize these?
14
THE COURT: Why don't you give them back to
15 him.
16
MS. ALPERT: Sorry.
17 Q
Det. Kong, how do you recognize those two videos?
18 A
I recognize them because it has my signature. on it
19 and
20
THE COURT: When you say "videos," you mean
21 the DVD?
22
MS. ALPERT: DVDs or CDs containing the
23 videos herein.
24
Q They both
do both items have your
25 A
Yes. It has my handwriting and my init
on
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Det. Kong - For People - Direct (Ms. Alpert)
them.
Q
And did you have an opportunity to watch both of
these videos that are contained on the CDs?
A Yes.
Q And how do you know that you indeed watched them,
these particular ones?
A I watched it with you.
Q And how do you know that this is, in fact, the
same one, the lms you watched?
A
Yes, it has my initials on it.
Q
Okay, great. And with regard to the Exhibit that
is the
with regard to both of these, Exhibit 1 and
Exhibit 2, what is contained on these? What is this a
videotape of?
A It's a tape of the Hot Lap Dance Club.
And was this videotape recorded on July 17th,
Q
through the early morning hours of July 18th, 2008?
A Yes.
Q And were you present during the making of these
videos?
A Yes.
Q And based on your recollection, watching these
videos, or these CDs containing the video, does this
videotape have a fair and accurate, and an exact
25 representation of the club as it appeared the night of the
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Det. Kong - For People
Direct (Ms. Alpert)
search warrant?
A Yes.
Q And are the segments contained in those
exhibits -- I believe 2 is the shorter version?
THE COURT: 2 is short and 1 is long.
MS. ALPERT: I'm sorry.
Q On People's Exhibit 2, are those segments exact
duplicates of the longer video that's contained in People's
Exhibit I?
A Yes.
Q And so both indeed were
Imed on July 17th, into
July 18th, 2008?
A Yes.
Q
qkay. And on the shorter one the segments are
also accurate depictions what of appears on the longer 1m
which is. indeed the same thing that -- that's the club that
night; is that correct?
A Yes.
MS. ALPERT: Your Honor, we'd like to offer
People's Exhibit 1 and 2 into evidence.
MR. MOSER: I have a voir dire, please.
MS. AL-SHABAZZ: I have a voir dire as well.
THE COURT: All right.
MR. MOSER: I'll go rst.
MS. AL-SHABAZZ: 1 right.
49
Det. Kong - For People - Direct (Ms. Alpert)
1 VOIR DIRE EXAMINATION
2 BY MR. MOSER:
3 Q
Detective, good afternoon. My name is Adam Moser.
4 I'm the attorney for Falynn Rodriguez. Just a few
5 questions.
6
Detective, you weren't in the nightclub, the Hot
7
Lap Dance Club, on June 20th, of 2008, were you?
8 A No, I wasn't.
9
Q And so you have no idea what the Hot Lap Dance
10
Club looked like on the evening of June 20th, 2008, do you?
11 A
That's correct. I have no idea.
12
MS. ALPERT: Objection.
13
THE COURT: Overruled.
14 Q
And the video that you took on July 17th to 18th,
15 that's a true and accurate portrayal of what that nightclub
16 looked like on that evening, correct, of July 17th to 18th;
17 correct?
18 A I didn't take the video.
19 Q The video that you -
20
THE COURT: Based upon your observation,
21
detective, does it appear to be the same as it was on
22 July 17th?
23
THE WITNESS: Yes.
24 Q
But you don't know what it looked like on
25 June 20th; 2008, correct?
50
VOIR DIRE BY MR. MOSER
1
MS. ALPERT: Objection, 'Your Honor.
2
THE COURT: Overruled.
3 A Yes.
4 MR. MOSER: I have nothing further.
5 MS. AL-SHABAZZ: May I?
6 THE COURT: Sure.
7 VOIR DIRE EXAMINATION
8 BY MS. AL-SHABAZZ:
9 Q
My name is Ikiesha Al-Shabazz. I represent Ms.
10 Malandri. I have a couple of questions for you.
11
You were present when the video was taken?
12 A Yes.
13 Q Who took the video?
14 A
Someone from the DAIs office.
15 Q
Somebody from the DAIs office?
16 A Yes.
17 Q Was it a pol
ficer or a detective?
18 A I think it was a civilian.
19 Q A civilian.
20 A Yes.
21 Q
Were you with that person the entire evening while
22 that video was being recorded?
23 A Not the whole evening.
24
MS. ALPERT: Objection.
25
THE COURT: Overruled.
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VOIR DIRE BY MS. AL-SHABAZZ
MS. AL-SHABAZZ: I didn't hear his answer.
Q
Were you with the person who was recording the
video the entire time?
A No.
Q
Okay. Did you see the video that evening?
MS. ALPERT: Objection, Your Honor.
THE COURT: Overruled.
Q
Did you see the video that evening?
A No.
Q
When was the first time you saw the video?
MS. ALPERT: Objection, Your Honor.
THE COURT: What's your basis, People?
MS. ALPERT: It's irrelevant to the relevancy
of this videotape.
MS. AL-SHABAZZ: It's very relevant.
THE COURT: Well, I think I'm the judge of
that.
MS. AL-SHABAZZ: I'm sorry. I'm getting to
it. That's just my position, Judge.
THE COURT: I know. Overruled.
A A couple of months ago.
Q A couple of months ago?
A Yes.
Q Would that be November of 2009?
A I would say. I don't remember.
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VOIR DIRE BY MS. AL-SHABAZZ
You don't remember? You watched it with the
Q
prosecutor, though, right?
A
Yes, I did.
MS. ALPERT: Objection, Your Honor.
THE COURT: Overruled.
Has your bas changed since last
objection?
MS. ALPERT: Same basis, Your Honor.
THE COURT: Okay. What 1S it, again, is your
objection?
MS. ALPERT: It's that this point of
questioning is irrelevant to whether the videotape
should be admissible.
THE COURT: Well, I guess you're arguing
about the weight at this point, but I'm going to allow
it. So overruled.
A November 12th, 2009.
Q November 12th. So since July of 2008 to November
of 2009, do you know where the video was?
A Nope.
Q Was it in your care, custody, and control?
MS. ALPERT: I'm sorry. Objection, Your
Honor. Same relevancy issue.
THE COURT: Okay, overruled.
Q Was it in your care, custody, and control?
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VOIR DIRE BY MS. AL-SHABAZZ
MS. AL-SHABAZZ; Judge, I'm going to object.
My objection is the basis of which is that this
incident, which the People have charged, occurred on
June 20th, 200B. In order for that evidence to be
relevant, with respect to this particular evening, they
need to have someone who can say that it fairly and
accurately depicts the Hot Lap Dance Club on June 20th,
which is the day in question. This officer saw it on
July 17th. Who knows whether there's been any changes
between the club, it's mechanism, the inside, the
furniture, the lighting, the music, and all that goes
with that until July.
So that's'my objection.
MR. MOSER: Judge, I, of course, have the
same objection. This witness cannot possibly, after
his testimony, state what this club fairly and
accurately looked like or this video that they want to
put into evidence looked like on that evening.
The intormation that the People have filed
doesn't state July 17th. It states that, "The
defendants in the County of New York," doesn't even say
the State of New York. It just says, "The County of
New York." It doesn't even give the address of the Hot
Lap Dance Club, where this allegedly took place. It
just gives the vague statement of, "In the County of
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VOIR DIRE BY MS. AL-SHABAZZ
New York, on or about," one date, "June 20th, 2008."
It doesn't say July 17th.
It doesn't say July 18th.
So I have the exact same objection pertaining
to any video that the People are presenting to offer at
this point to be moved into evidence.
MS. ALPERT: Your Honor, in response to that,
we'd like to say that we have additional witnesses that
will come forward after this and they will, of course,
take a look at this video, and there will be a degree
of relevancy established with that.
But separate from that, we do have case law
that cites you can indeed bring a videotape into
evidence when the videotape is filmed afterward and
it's not intended to be an exact reenactment of the
video.
THE COURT: But unfortunately, Ms. Alpert,
during your opening statement, you mentioned a lot of
items that were -- that's indicated on the video on
July 17th, and I think that's the basis of the
defense's argument that you did allude to numerous
items being in the facility at that time.
MS. ALPERT: Yes.
THE COURT: So I guess -- my question lS what
is the purpose of you putting the video in?
MS. ALPERT: The purpose of us putting the
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VOIR DIRE BY MS. AL-SHABAZZ
video in is that we'd like to establish the setting of
this crime, and once you've had an opportunity to look
at the video, you will see the location in which the
conversations took place, you'll see the private rooms
in which the
fendants attempted to bring them to
commit the crime and, therefore, it is highly relevant
to the case it f.
THE COURT:
So are you -- is this subject to
connection?
MS. ALPERT: No -- yes, I apologize. It
would be subject to connection, Your Honor, and,
furthermore, in the case People vs. 11 which is
THE COURT: If you're saying that it's
subject to connection, then I buy that argument.
Do you have
MR. MOSER: Judge, just one -- this is the
wrong witness to put this
dence in.
THE COURT: Of course -
MR. MOSER: 1 right. I'll sit down.
This
is the wrong witness.
MS. AL-SHABAZZ: Judge-
THE COURT: I think that the People -- I
understand your basis. He was present. He could have
had him, I guess, or your detective
investigator
from the DA's of ce to testi
as well, but it can be
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VOIR DIRE BY MS. AL-SHABAZZ
put in subject to connection depending on who you're
trying to put the evidence in.
So at this time it's going to be marked as
People's 1 subject to connection.
MS. ALPERT: Thank you, Your Honor. I
appreciate that.
And then we have several more questions, if
you don't mind.
Q Next, Det. Kong, I'm actually going to show you
several photographs. These images are video stills which
means that they are videos that were taken from the same
videotape that you just -- that we entered into evidence,
People's 1 and 2 subject to connection.
MS. AL-SHABAZZ: I'm going to object,
cumulative. If they're going to have the video in
subject to connection why do they also need the photos
in? It's improper able bolstering,
's prejudicial,
it's irrelevant, and it does nothing for the People.
They're doing - I'm not sure -- if it is exactly the
same, then it's duplicative. I'm objecting to the
photos coming in on the same basis that this officer
can authenticate them for the same reason I stated the
video can't come in.
MR. MOSER: I, of course, have the same
objection. The question is in this case whether or not
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Det. Kong - For People - Direct(Con't.)
to engage in
the defendants engaged, agreed, or of
sexual conduct on a certain date. This isn't a jury trial.
It is improper with this witness, once
It's a bench
again, cause
has no idea what this
looked like on
June 20th, or if any of these
were even there on
June 20th.
THE COURT: People, how do you bring this
evidence ?
MS. ALPERT: Subj
to connection, the same
way as
prior one, and th
is also - just to rna
it easier on Your Honor
than the long video -
THE COURT: No, I understand.
MS. ALPERT: For
reaSon we'd like to
er these subject to ion and -
THE COURT: You have 1, 2, so this will
why don't we group them?
MS. ALPERT: Can we make this 3 for now?
THE COURT: How many photos do you have?
MS. Five, Your Honor.
THE COURT: All right. So we'll have 3A
through E?
MS. ALPERT: And just for your
, we do
have case law supporting the same still images in the
same way that one would use in the video.
THE COURT: People, I'll have you just look
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Det. Kong - For People - Direct(Con't.)
at the photos be
MS. ALPERT: Thank you.
THE COURT: Just take a moment for your
notes.
(Whereupon People ewed photographs.)
MS. ALPERT: Thank you, Your Honor.
THE COURT: All right.
Counsel, do you need to look at them as well?
MR. MOSER: Yes.
(Whereupon defense counsel reviewed
photographs.)
MS. AL-SHABAZZ: Same obj on.
MR. MOSER: I also have the same objection
too.
THE COURT: So noted.
COURT OFFICER: People's 3A through 3E marked
identification being shown to witness.
Q Det. Kong, if you could just take a minute to look
through People's Exhibit 3A through 3E. It should be five
pictures before you.
A Okay.
Q
Have you had a change to look at them?
A Yes.
Q Det. Kong, do you recognize these images?
A Yes.
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For People
Direct(Con't.)
Q
What do you recognize them to be?
A
I recognize these to be found at the Hot Lap Dance
Club.
And are these images video stills or -- are they
Q
exact duplicates of the images that appear on the video
recorded on July 17th through July 18th, 2008, that are
People's Exhibit 1 and 2?
A Yes.
Q And are these images that are before you right
now, People's Exhibit 3A through 3E, are they images that
are fair and accurate, indeed, exact representations of the
club as it appeared that night?
A Yes.
MS. ALPERT: Your Honor, we'd like to enter
these People's Exhibit 3A through 3E -
COURT: Subject?
MS. ALPERT: Subject to connection.
MS. AL-SHABAZZ: May I have a brief voir
dire, Your Honor?
THE COURT: Yes.
MS. ALPERT: Thank you, Your Honor.
VOIR DIRE
BY MS. AL-SHABAZZ:
Q Is it cer or detective?
A Detect
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VOIR DIRE BY MS. AL-SHABAZZ
Q Sor
Detective Kong, the duplicates - you say
they are exact images.
Did you compare them to the video?
A Yes.
Q
Did you do each one at a time?
A Each one at a time?
Q
Each photo you compared to the video?
A Yes.
Q
Okay. And do you know where on the video the
still is taken?
A I don't know the exact time.
Q The frame location?
A
Timing, I don't know.
Q
Did you produce those photos?
A No.
Q
Who produced those photos?
A The ADA Alpert.
Q
The DA? The assistant district attorney produced
the photos?
A I didn't do it.
Q If you don't know, I don't want you to speculate,
detective. Do you know who produced those photos?
A It was given to ADA Alpert, so I thought
MS. AL-SHABAZZ: Move to strike as non
responsive.
Q Detective
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VOIR DIRE BY MS. AL-SHABAZZ
THE COURT: Sustained.
Q
Do you know who produced those images from the
video?
A No.
Q Thank you.
MS. AL-SHABAZZ: Same objection, Your Honor.
THE COURT: All right. Overruled. It's
subject to connection, and we'll see if they'll be put
ln through People's witness.
MS. ALPERT: Thank you.
Your Honor, we have nd more questions for
this witness at this time.
THE COURT: Counsel?
MR. MOSER: I just have some brief questions.
CROSS EXAMINATION
BY MR. MOSER:
Q Detective, can you describe what contact you had
in this case with
defendant, Falynn Rodriguez?
A
The only time I saw her was when
was in cuffs,
and s was brought to a room.
Q
Did you see her on June 20th, of 2008?
A No.
Q Did you hear any of the
leged conversations
which took place between Ms.
guez ,and another
undercover officer on June 20th, 2008?
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Det. Kong -For People -
s(Mr. Moser)
A No.
Q
And you never went to
location of the Hot Lap
Dance Club on June 20th, of 2008, correct?
A Correct.
MR. MOSER: I have nothing further of this
witness.
CROSS EXAMINATION
BY MS. AL-SHABAZZ:
Q
Kong, you were
arresting officer in
this case, correct?
A Yes.
Q
And as the arresting of cer, you're responsible
for the paperwork, right?
A
Q And you spoke to the undercover
this case,
right?
A Yes.
Q
And, in
, you spoke to him closely a it
happened on June 20 , right?
A No.
Q
When did you k to him about the case?
A I spoke to him
THE COURT: One second, detective.
(Whereupon,
is a discussion
held off the among Court and the
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Det. Kong
For People - Cross(Ms. AI-Shabazz)
court sta .)
C O U R T ~ Oh, all right. Continue.
A I would say maybe a couple of weeks a r
June 20th.
Q
A couple of weeks after June 20th?
A Yes.
You don't know? You don't recall?
Q
A I don't remember.
Q
Do you remember if you reviewed any paperwork from
undercover?
A No.
Q
No, you don't recall or no, you didn't review?
A
No, I don't recall.
Q Okay. You prepared the complaint in this -- the
complaint affidavit in this case, correct?
A Yes.
Q Okay. And you were the deponent when you prepared
that complaint, right?
A Yes.
Q And you were informed by someone as the deponent,
correct?
A Yes.
Q And you were informed by Undercover 2948 when you
prepa
this complaint report, correct?
25 A Yes.
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. Kong - For People - Cross (Ms. Al zz)
Q Okay. Now, did you have a
ion with him,
or
d you look at paperwork?
A
I looked at paperwork, and
spoke to him on
probably the day of the search warrant.
Q Okay. So you did look at
s rwork?
A Briefly.
Q
Okay. What paperwork did you look at?
A His DD5.
Q Okay. And you also spo
wi him?
A Yes, briefly.
Q And the things that you discussed with him you put
in complaint, correct?
A Yes.
Q And you did this because this was your regular
course of business, right?
A Yes.
Q And it was your duty to put
facts in the
comp , right?
A Yes.
Q And you put these facts in complaint because
you took them to be true, correct?
A Yes.
Q As the officer told you, undercover officer,
told you?
A Yes.
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Det. Kong
For People - Cross(Ms. Al-Shabazzl
1 Q Right. And, in fact, he told you that he gave -
2 in fact - withdrawn. In fact, he told you that my client,
3 Ms. Malandri, who you called in the complaint Alexia Moore,
4 offered to engage in sex for $300. You recall putting that
5 in the complaint?
6 A As of now, no.
7 Q Okay.
8
MS. AL-SHABAZZ: I'd like to show the witness
9
Defense - mark it Defense A for identification.
10
Q Take a look at that complaint and see if it
11 re
shes your recollection of what the undercover told you
12 with respect to how much
was made to him r s fer
13 of sex?
14 MS. ALPERT: Your Honor, I would like to
15 object to this. The defendant does not prepare the
16 complaint - I'm sorry. The witness does not prepare
17 the complaint. It's the district attorney's office
18 that prepares the complaint, so she's factually not
19 correct.
20
THE COURT: Well, did he sign it?
21

..
MS. AL-SHABAZZ: If I could have him look at
22
it, I can go through that, because he did sign it.
23
It's an affidavit. It's a sworn document.
24
COURT OFFICER: Defense's A being shown to
the witness. 25
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Det. Kong - For People - Cross(Ms.
-Shabazz)
Q
If you would just take a moment to look
that.
When you're done, just look up so we know you're done.
(Whereupon, Defense's Exhibit A was
published to the witness.)
(Back on the record.)
THE COURT: Take your time to it,
detective.
THE WITNESS: Yes.
MS. AL-SHABAZZ: Judge, while he is doing
that, can we have a brief sidebar?
THE COURT: Sure.
Do you want it on the record?
MS. AL-SHABAZZ: No, not really. It doesn't
matter.
(Discussion held off the record.)
(Back on the record.)
THE COURT: All right.
On the record, Counsel, with re to
Antommarchi on. I just want to put that on the record,
counsel.
MS. AL-SHABAZZ: If I could just have a
second.
(Whereupon, there a discussion
held off the record among the defense counsel
and the defendants.)
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Det, Kong
For People - Cross {Ms. AI-Shabazz)
MS. AL-SHABAZZ: Judge, on behalf of Ms.
Malandri, I've spoken to her about her Antommarchi
rights, to be present at bench conferences, and at this
time she's authorized me to waive her presence at such
conference.
THE COURT: Couns ?
MR. MOSER: I've also spoken to Ms. Rodriguez
about her same right to be
sent at sidebars and
bench conferences that will be on the record, and she
is waiving her right to be there as well.
THE COURT: Thank you.
MS. AL-SHABAZZ: You know what? The People
weren't here when we just did that. I didn't realize
it.
For the record, for their benefit, I had a
conversation with Ms. Malandri regarding her
Antommarchi right, to
present at bench conferences
and side conferences, and she's authorized that -- to
me to waive that right to
present.
THE COURT: And, Counsel?
MR. MOSER: Defendant, Ms. Rodriguez waives
as well.
THE COURT: You may continue.
MS. AL-SHABAZZ: Can I please have a
back of the last question? I think I know where I was.
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Det. Kong - For People - Cross (Ms. Al Shabazz)
He was refreshing pis
lection.
THE COURT: Right, he was re ng his
re ion.
Q Have you had an opportunity to a look at
what's marked Defense's A
A Yes.
Q For identification?
A Yes.
Q And do you recognize that?
A Yes, I do.
Q
What do you recognize it to be?
A It's an affidavit.
And is that your signature, here, at the bottom of
Q
the affidavit?
A Yes.
Q Okay. Does it re
h your recollection as to
what the undercover told you, he paid or
he paid with
respect to
s offer, and/or agreement, or
dance?
A
Vaguely. It's not very -- not to
Q
Okay. Does it that you put there that he
informed you, he paid $300, correct?
A I stated that in
affidavit.
Q Right. And when you stated that you believed it
to be true, correct?
A
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MS. AL-SHABAZZ: I have nothing further.
THE COURT: Any redirect?
MS. ALPERT: There is no redirect.
Thank you.
MR. MOSER: Nothing. Thank you.
THE COURT: Detective, you can step down.
All right. At this time we're going to break
for lunch.
Oh, that's right. What do you have?
MR. STRAZZULLO: Can I be back at 3:00, 3
o'clock; is that fine?
THE COURT: You told me. What was it?
MR. STRAZZULLO: At 3 o'clock it
11 be
over. I will be able to be here at 3:00.
THE COURT: Right. Just put it on the record
where -
MR. STRAZZULLO: Where I'm going to be at?
THE COURT: Yes.
MR. STRAZZULLO: It's going to be something
personal.
THE COURT: Oh, I thought it was a court
case.
MR. STRAZZULLO: No, no, no.
THE COURT: Okay. I do recall you bringing
it to the Court's attention. All right, 3 o'clock.
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Thank you.
(Whereupon/ there is a luncheon
recess taken and the case adjourned to 3:00
p.m. )
AFT ERN 0 0 N
S E S S ION
Recalling case on
COURT: All right.
?
MR.
Your Honor, our next witness will
be
cer 293.
COURT: Okay. Are you aware of your
other witness is in
MR. REED: Excuse me,
He's right -- we
need
courtroom clear, Your Honor, and he's right in
the jury room, behind this courtroom.
THE COURT: Okay.
MR. REED: The courtroom should be clear and
so the hallway.
THE COURT: All ght.
Any objections?
ly members here?
MR. MOSER: I
't have any today.
MS. AL-SHABAZZ: Oh, actually, there is one
ly member. Our
ent's fiancee is here.
MR. REED: I ect.
MS. AL-SHABAZZ: We would ask that -
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People had not made any application to exclude the
defendant's family members from the courtroom. I
lieve that's reversible error
MR. REED: That's untrue.
MS. AL-SHABAZZ: Can I finish?
MR. D: Yes.
THE COURT: Let her fini
MS. AL-SHABAZZ: I believe that's reversible
error without a showing that there's -- that this
particular person poses some sort of threat to this
undercover officer or any investigations that are
ongoing, and the People have not made such showing.
THE COURT: That's is why the Court is
pointing it out at this point, and if the People
MR. REED: Your Honor, the People do obje
to this individual being in courtroom. We would
have to re-litigate the whole Hinton issue.
THE COURT: We don't have to itigate, no.
That's not the purpose of the Hinton hearing. That's
one thing for it be closed, but when it comes to family
members, it's upon you I mean, if you want to have
that person questioned or if you want this person to
take the stand, you could have them questioned, you're
free to do that. But I cannot just have the family
prevented from coming into the courtroom.
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MR. REED: And, Your Honor, he's not family
if he's just the fiancee.
And it was pointed out to the People that
this individual, this particular individual, was not a
fiancee. Last time -- not last t ,but a couple of
adjournments ago, the People were d that this was
one of
fendant's drivers.
MS. AL-SHABAZZ: Judge,
has been here at
every appearance. This is her
ancee. He has
escorted her to court on every occas
For as long
as we have been representing Ms. Mal
, we have
always had him at her side.
The People, still, haven't s
any reason
why they would ask to have him excluded.
MR. REED: For the same reason
MS. AL-SHABAZZ: No. I'd like
the record
to be ar
THE COURT: Okay, guys.
MS. AL-SHABAZZ: Because
s is reversible
error. Should the -
THE COURT: Okay.
MS. AL-SHABAZZ: I'm s
THE COURT: So noted, Counsel.
, what you have to do it's fine that
you may feel that he should not be ent, but you
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have to put
basis on the record. If you have to
reiterate some of the things that were mentioned at the
Hinton hearing, you can do so, bqt why don't you ta
your time and have a conversation with your supe
sors
so that the parties
MR. REED: You mind if I step out in the
hallway, Your Honor?
(Whereupon, there is a brief recess taken.)
(Back on the record.)
THE COURT: Go ahead, yes.
MR. REED: Judge, individual that Ms.
Malandri's fiancee has been served with a subpoena by
our office and, there
, he's a witness in this case
and it's the People's position that he can't
in the
courtroom during the testimony of another witness.
Although he's refused to give the People his
name, he's still been served with that subpoena.
I'm ready to go.
THE COURT: People, you have to give me an
r of proof then
MR. REED: It's the People's -- one moment,
Your Honor.
MS. AL-SHABAZZ: I hope you, guys, are
getting this.
THE COURT:
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People, why don't you approach
ckly and
me just tell you what your burden is?
MR. REED: Yes, Your Honor.
THE COURT: And then you can ta
a moment.
the record.
(Whereupon, there is a discussion
held off the record at the bench among the
Court, de couns and the assistant
dis attorney. )
k on the record.)
THE COURT: People?
MR. REED: Your Honor, just for the record,
the People served the individual who claims -- who
Ms. Ma1andri claims to be her fiancee. Not for the
purpose of intimidation. If he was intimidated, People
can't be -- can't control that, how he reacts to a
subpoena.
We served him because if Ms. Malandri intends
to testify, or Ms. Rodriguez, we intend to call him as
a witness and, our position is, if he's a witness of
the case he must be excluded from all other testimony.
THE COURT: How do you intend to call someone
as a witness if you don't even have their name. It's a
basic s
A. Who are you?
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B. Do you identification?
Co He has counsel here that could take part.
They have a constitutional right, and the
People rather then run and get a subpoena with no
name -
MR. REED: We asked the individual his name,
and he refused -- through his attorney refused to give
his name to the People. Therefore, he was served with
a blank subpoena, and upon that serving, he
disappeared.
MR. STRAZZULLO: Your Honor, I advised him of
his rights, and he took the fifth amendment. He
doesn't have to answer to anyone, period.
THE COURT: Well, okay.
MS. AL-SHABAZZ: May I be heard, Your Honor?
THE COURT: SUre.
MS. AL-SHABAZZ: Just so the record is clear
from the defense's position, it's my understanding, and
this is Ikiesha AI-Shabazz, on behalf of Ms. Malandri,
that the People had there was a Hinton hearing held,
and the People made
put on a witness and brought out
certain testimony about that witness and the Court
granted the People's application to close
to closure
with respect to that witness. At no time did the
People ever inquire from this witness if he had any
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particularized fear from Ms. Malandri's friends and/or
family. So Ms. Malandri's fiancee has been in this
courtroom, at a number of court appearances since this
case has been pending.
The People sought to exclude him from the
testimony of the undercover after the Hinton hearing
with no factual basis or predicate. When that didn't
work the People, then, sought to serve him with a
subpoena for the sole purpose of making him a witness
in this case so that he couldn't be present in the
courtroom in an attempt, in an offensive attempt, to
circumvent the law as it applies to the defendant's
right to have a public trial.
At this point the witness that the People
were seeking was served a subpoena -- I would ask that
the Court make this a Court Exhibit, a subpoena that
has no address, no name, or anything like that. They
say they consulted with my cocounsel with respect to
that, but at this time the fiancee then gets up and he
leaves. He's now intimidated because he's served with
a subpoena by the district attorney's office, and he
doesn't know why.
And, now, he doesn't want to be here or he's
a id to be here which is the same as excluding him
improperly from being at his fiancee's public trial.
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I think this is reversible error and will be
more than happy to file an appeal.
At this point, as it stands, the --
Ms. Malandri's fiancee is not in the courtroom, and
we're ready to proceed. We would like an exception,
and I want my objection noted for the record.
MR. REED: Your Honor, I'd just like to
address Ms. Shabazz's argument.
However, offended defense counsel may be at
the serving of the subpoena, it was not served for that
individual who we don't know his name, although we
asked through his attorney and he refused to give; we
donft know his name, the sole reason we served that
subpoena on that individual was for him to be a witness
if Ms. Malandri choices to testify. Because it is our
position that through our investigation, many months of
investigations, that on"e of Ms. Malandri' sand
Ms. Rodriguez's defenses may be, are that they're
lesbians, Your Honor, and that they don't deal with
male individuals sexually. And if she was to testify
and say that it's our position that we should be
allowed to call her so-called fiancee to rebut her,
Your Honor, and it's -- defense counsel may be
offended, but it
1
s not true that we served that
subpoena in order to intimidate him.
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The People can't control how people react to
subpoenas. We asked him what his name was. He refused
to give it through his counsel and then he Ie
And, Your Honor, I'm not prepared to put a
witness on just because defense counsel averse that
he's gone and he won't come back. I'm not going to put
an undercover on who, through at our Hinton hearing,
said to you explicitly that he had a contract on his
life and, Your Honor, if you're going to exclude the
press, who is the foundation and cornerstone of our
freedoms, then certainly you can exclude someone that
refuses to give his name to the OA, and also flees upon
service of a subpoena.
MS. AL-SHABAZZ: Just for the record, the
People served a witness list in this case, and Ms.
Malandri's fiancee's name was not on that witness list,
and this trial started two days ago. It's just
magically that ten minutes when this became an issue,
somebody ran and got a subpoena and then served it to
him today. Today!
If it was the People's intention that they
were going to call this witness to refute any claim
that these two defendants are lesbian, why wasn't his
name on the witness list? Why wasn't he mentioned?
They don't have any reason, none whatsoever.
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This manufactured de
e that they say we're
going to put on, is just ridiculous. You can't have a
witness in anticipation of a defendant who has a right
to remain silent.
MR. REED: Your Honor, we didn't know -- we
did not know who this individual was. A few
adjournments ago, the adjournment just before we had
the Hinton hearing or the adjournment at the Hinton
hearing, it was told to the People that that individual
was the driver, not a fiancee. Now, today, he is a
fiancee. We didn't know who this individual was in
order to have the subpoena prepared in order to serve
him.
And as far as a subpoena and new witnesses
being -- that are not on the witness list being called
at trial, it happens, it happens when they appear, and
it's not the People's fault that this individual
chooses.to appear, wants to stay in the courtroom why
the undercover testifies. It's not our fault that he
claims that he's a fiancee today.
It's that
individual's fault, you know. We could have covered
this during the Hinton hearing, three months ago.
MS. AL-SHABAZZ: People could have covered
it.
It's their burden.
THE COURT: You know, People, that's your
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burden. And one of your questions that you should have
asked or -- in particularly in regard to family members
of the defendant that is your burden.
If you look at, and I have the case here,
it's a Court of Appeals case, People v. New York -
Milton Nieves, 90 NY2nd 426. It's a 1997 case, and it
deals specifically with family members.
MR. REED: Your Honor, I have a rst
Department case.
THE COURT: Okay. I have a Court of Appeals
case.
MR. REED: Oh, I'm sorry.
THE COURT: But what case do you have?
MR. REED: Well, I have a First Department
case that said that family can be excluded, but in
addition to that -
THE COURT: No, no, no. I never said that
family -- let me just -- you know what, I need to put
this on the record because it's just a bench
conference. Let me just put this on the record.
"What constitutes family? Wife, husband,
children, girlfriend, boyfriend. How is family
identified? If they have been attending the court
proceedings throughout and having previously been
iden fied or observed in the courtroom as family, or
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if the defendant specifically request to have family
members present and subsequently identifies them, there
has to be a showing on the record, a data
identification card establishing the relationship.
The burden is on the People to establish who
should be excluded and why it is compelling. A
compelling reason that trumps the defendant's sixth
Amendment right, inquiry must be made of the officer,
and it must be established that the family member
sought to be excluded post a threat to the undercover
safety for those members of the family to be excluded
from the courtroom or friends." It says, "family or
friends."
"Closure cannot be barred unnecessary. There
must be some valid ground in the record, if not through
the officer's testimony, for the family or friend
exclusion that the family is involved, for examples;
sales of drugs, being investigated, some kind of prior
conviction r sale of narcotics, prostitution."
So the burden is on -- that burden is on the
People.
MR. REED: Your Honor, it's the People's
position that this isn't a Hinton hearing -- a Hinton
issue. He's a witness and, therefore, should be
excluded anyway because he was served with that
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subpoena. That's our position.
MS. AL-SHABAZZ: Can we make this a Court
Exhibit? It needs to be in the record because this is
going to be appealed. This is going to be an Appellate
issue if there's a conviction in this case.
THE COURT: Why don't we -- why -- you know
what? We're going to second call this case. Take a
moment.
Off the record.
(Whereupon, there is a discussion
held off the record-among the Court, defense
counsel and the assistant district attorney.)
(Back on the record.)
THE COURT: And as you said and as I've
mentioned off the record but back on, that the Hinton
has changed drastically in years. Before when the
Court said closure, it was closure. But it's not that
open now. You really have to state the basis on why
you want to exclude certain individuals.
MR. REED: Your Honor, it's our position that
it's not a Hinton issue, now that this individual is a
witness as per that subpoena.
THE COURT: Right. But it was a Hinton issue
to you ran and served him with a subpoena, so you
turned it around, but I don't know that -- if I buy
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your offer of the proof because I could say that that's
a collateral issue.
MR. REED: Can you give us a moment, Your
Honor?
THE COURT: Yeah. Just take your time. I'm
not rushing you. I said take your time.
Go ahead.
(Whereupon/ there is a recess taken.)
( B a ~ k on the record.)
THE CLERK: Case on trial continued.
MR. REED: Your Honor, just to let you know,
just not to confuse the issue, I'm going to make part
of the record -- I'm going to make part of my argument
and, if you don't mind, ADA Alpert is going to stand up
and read case law.
THE COURT: Not a problem.
MR. REED: Okay.
Your Honor, first I'm going to address the
issue of the Hinton hearing and, specifically the issue
of whether or not the family members, specifically in
this case, Ms. Malandri's fiancee, should be allowed in
this courtroom.
First, Your Honor, I just want to make the
Court aware one more time that we didn't know this
individual before today. A few adjournments ago, as I
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~ a i d , it was represented to us that he was a driver for
one or both of the defendants. We didn't know until
today, therefore, we couldn't have served him with a
subpoena nor could we have included him on any witness
list because we didn't know this person existed .as a
fiancee.
THE COURT; But also the case law says,
"friends". You just can't exclude friends, so it
doesn't matter. It could be the driver who was her
friend. You have to indicate the reason on the record
why that person should be excluded from the courtroom.
MR. REED: Your Honor, I feel that if this
person is a family member, fiancee, or a friend
THE COURT: Right.
MR. REED: That this Court - I do ask that
you reopen the Hinton hearing to see whether - to give
the People an opportunity to inquire to the undercover
to see whether he feels, or whether or not this fiancee
or limo driver may post a threat to him, especially
since this -- it's our position that this undercover
doesn't know this person, never seen him before, and if
he were to learn the identity of the undercover would
that not pose a threat to the undercover.
And, Your Honor, I'm not trying to burden the
Court, and try to slow down the Court but
I know
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that this is a B-misdemeanor, however, it's our
information that -
THE COURT: Don't worry about the Court. You
have to worry about doing your job.
MR. REED: So, now, ADA Alpert is going to
read a little case law.
MS. ALPERT: Your Honor, in the case, People
vs. Shepard which is a First Decision Appellate Case,
and the cite citation to that is 257 A.D.2d 464, the
Court there held that the -
THE COURT: What's the year?
MS. ALPERT: This is a 1999 case.
THE COURT: Go ahead.
MS. ALPERT: "The Court held that the
exclusion of a defendant's family from the courtroom
during undercover officer's testimony in a drug
prosecution was warranted, whereas the time of the
Hinton hearing, the trial court was not appraised by
the defendant, and had no other reason to know that the
defendant's family wished to attend the trial, and thus
court had no occasion to rule on whether the family
members posed a threat to the officer, and the
defendant did not seek to reopen the Hinton hearing
when family members subsequently appeared in court."
It's our position on this case, and I'm going
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to read another case later -
THE COURT: Go ahead.
MS. ALPERT: That we were not appraised of
the fact that this individual, who they now claim to be
the ancee, was indeed a ancee or a family member or
even a friend when we spoke with the defense counsel
and inquired as to who that individual was, and we
specifically pointed out that individual and asked who
he was, they told us that it was the driver.
As such, when we conducted the Hinton
hearing, we had no ability to question the undercover
about his safety with regard to that individual since
we did not know he was a family member or friend or
fiancee and, therefore, we -- our position is that the
case should at least be reopened to a Hinton hearing
should you want this individual to be here.
Furthermore, I'd like to cite another case.
This case is the People of the New York -- I'm sorry.
People of New York vs. Jane Lopez, L-O-P-E-Z. The
number of this case is 18 A.D.3d 233. This is a 2005
case. It's a First Department Appellate Division Case,
and in this case the court held that:
"Once the prosecution has met the burden of
showing that the courtroom must be closed to the
general public in order to protect a witness's safety,
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the burden should shift to the defendant seeking to
an exception to the closure."
Therefore, it's our position that while we
might initially have had a burden to show that the
court should be closed in the Hinton hearing, now that
we've conducted the hearing and the Court has made its
decision based on this case, that it is now the
defendant's
the defense's duty to make an exception
to that.
MR. REED: And just to make the Court aware,
the supervisor came down and, I guess, there was a
Hinton case that was decided for the U.S. Supreme Court
yesterday, believe it or not
THE COURT: As of when?
MR. REED: Yesterday.
THE COURT: Oh, all right. Okay.
MR. REED: They knew that this was going to
happen.
THE COURT: Share the knowledge.
Do you have the case?
MR. REED: Just -- I haven't had a chance to
review it in depth, Your Honor, however, I would like
to -- there are certain changes to the Hinton, the way
Hinton is looked at by the Supreme Court. However, one
of the things that you should take note of is that
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possible alternatives should be -- that Courts must
consider alternatives at closure even if no
alternatives are suggested by the defense, and I know
this is a B-misdemeanor -
THE COURT: You don't have to keep going on
about this being a B-misdemeanor case.
MR. REED: Okay.
And some of those alternatives may be either
disguising the undercover or a screen put up in front
of the undercover so his identity is not made obvious
to public.
However, it's my position that this courtroom
wouldn't allow for that simply because a disguise -
the potential witnesses could still hear his voice and
the screen as well could hear his voice. I don't think
that it's a reasonable alternative. I think that the
only alternative is exclusion in this case, Your Honor.
But if you still allow, you know, even after a Hinton
hearing, still allow the fiancee or limo driver into
the courtroom, I'd just like to reiterate that we did
not try to circumvent the defendant's constitutional
rights by serving this individual with a subpoena. We
had this case -- or this case has been going on for
almost a year and half now, a little bit over a year
and half, and through our investigation of Ms.
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Malandri, more Ms. Malandri, in some of her website
postings or some things that have appeared on websites
that she has appeared on, there has been allusions that
she doesn't have sexual intercourse with men and she
does only deal with women sexually. And we anticipate
that if she -- or we should be at least allowed to
anticipate that if she were to take the stand and make
that claim, that we should be able to call her
suppose-it fiancee as a rebuttal witness. And, again,
I'd like to point out, Your Honor, we did not know of
this individual, we did not know that he existed as a
fiancee, and certainly would have included him on a
witness list and/or had subpoenaed him had we know of
his identity.
And, again, Your Honor, we still don't know
who he is. We inquired as to what his name was. He
refused to give it through his -- through defense
counsel and, in fact, has disappeared from the
courtroom which I submit even as to -- it gives more
credibility, or more credibility in our argument, that
we should at least be able to reopen the Hinton hearing
as to see whether a person that's served a subpoena
that disappears after being served would post a threat
to the undercover's life. However, I mean, if his
identity was known. One moment, Your Honor.
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Oh, and like I said there is an active
contract out on the next witness's life.
One moment, Your Honor.
THE COURT: The Court is aware of that.
MR. REED: Thank you. Thank you for your
time.
MS. AL-SHABAZZ: May I be heard?
THE COURT: Please.
MS. AL-SHABAZZ: I don't think the People
have said anything that wasn't already said, but I'll
respond.
The People's speculation and contingency may
not override my client's right to a public trial.
Specifically, the People are relying on People vs.
Shepard, and I haven't read it, but I was a former
Narcotics Prosecutor in this County. Hinton hearing
was my life. And I will tell you that that man has sat
in this courtroom -- this case is not like Shepard.
It's not a narcotic case, and there are many cases in
which the Court has found that narcotics are inherently
link to violence. And a lot of times those people are
involved in narcotics so too are there family and
friends which is why it's incumbent upon the People to
say sometimes family and friends who are involved in
these operations they have to be e x c l ~ d e d too. This is
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not the case here. Particularly, Ms. Alpert referred
to the part in Shepard where it says, "The Court had no
occasion or People had no occasion to know that a
family member would attend." Again, he's been here
everyday,
Lastly, closure can't be no broader than
necessary, and there can be some alternative to
closure. The People suggested them and then withdraw
them.
I don't even know why he would mention a scrim
and then say, "Well, that's not going to work."
The fact remains is that this case has been
pending for a year, the investigation into Mr. Posner
was pending for a year prior to that. If they had any
factual basis whatsoever that Ms. Malandri had a family
member or a friend who would post a threat to this
undercover, it can't be a speculative threat. The
Court is very specific. This, they keep throwing out,
"He's got a contract on his life." I remember when he
testified. That contract that he has on his li
had
nothing to do with this case, nothing. I don't
remember ever this witness saying, "This contract is a
result of my involvement in a prostitution case." In
general, this one in particular. I believe he
testified, and it was while ago, so I could be wrong,
believe he testified that it was related to some of his
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narcotic investigations. Not this case. And I
don't -- I really at this point don't understand the
People's position on a witness list. I think ~ t ' s
disingenuous, to say the least, for them to run around
and in a span of ten minutes get a subpoena and then
claim that they were intending to call any boyfriend or
any male sexual partner to refute an immaterial issue
in this case, as to whether or not she would engage in
sex as if she we accepted a proposition that she is
a lesbian, that she wouldn't have sex for money.
It
doesn't even make sense.
Lastly, again, I think the People have had a
full and fair opportunity, and I think we've made an
ample record with respect to this issue and, I think,
defense has nothing more to say. Let's move forward.
MR. REED: Just a few words. Just a few
words, Your Honor. The only reason why we mentioned
the Supreme Court case is because we didn't want to be
disingenuous since we found that case, and we didn't -
you know
MS. AL-SHABAZZ: Thank you.
MR. STRAZZULLO: Thank you, very much.
MR. REED: All right. But I did make my
but I do still stand by my position that I don't think
that the alternatives mentioned in the Supreme Court
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case should be applicable to this case. I don't think
it will work.
Defense counsel claims that she admits -- or
defense counsel admits that our undercover is a
narcotics undercover and defense counsel even said that
those are inherently related to violence, a lot of
them. And it's our position that it doesn't matter
whether or not the contract on our undercover is
related to this case. The fact is that he's an
undercGver. His identity could be found very easily as
was testi ed on, at length, through my direct and
defense counsel's cross. We know that you can find
people on the internet, etc.
And it's just my position that since this
undercover is a narcotics undercover and since we don't
know who this individual is, that he -- we should at
least be able to reopen the Hinton hearing to get the
undercover's feelings on it.
And, lastly, Your Honor, you have held that
the contract on his life, although it's not related to
this case, you've held that th courtroom should be
closed. And we have members of the press that, as I
said, are the foundation of our -- of a lot of our
freedoms and you're going to exclude them, I think that
we should at least be given the opportunity to hear
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what the undercover has to say as it relates to his
safety, when it comes to this individual who will not
make his name known to others to my office, and has
disappeared into thin air upon service of a subpoena.
Thank you, Your Honor.
MR. STRAZZULLO: Nothing further, Your Honor.
MS. AL-SHABAZZ: You see I couldn't even say
it.
THE COURT: Okay.
I need about ten minutes
myself since I have a case -- just received a case from
yesterday, I think that I need a moment.
(Whereupon there was a recess taken.)
(Back on the record.)
THE COURT: All right.
I looked over the case law and, at this
point, I'm going to allow the People to reopen the
Hinton hearing. So that means that all parties at this
time have to be excluded.
COURT OFFICER: Witness entering.
Sir, if you could just step up to my partner.
Sir, take the stand, remain standing, and
se your
right hand.
Do you swear or affirm that the testimony
you're about to give shall be the true, the whole
truth, and nothing but the truth?
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THE WITNESS: Yes.
COURT OFFICER: Have a seat.
DIRECT EXAMINATION
BY MR. REED:
Q Could you -- good evening, officer.
Could you
just name your shield and command for the record, or your
undercover number, and your -- your undercover number for
the record?
A UC No. C0148.
Q Okay, and I just have a few questions for you.
Could you articulate to the Judge what your fear would be
or would you have a fear if there was a person that was
unknown to you in the courtroom at the time of your
testimony?
MS. AL-SHABAZZ: Objection. That's not the
standard, Judge. Any person in general? Objection.
THE COURT: sustained.
MR. REED: Okay.
Q Would you have a fear if there was a family member
of the defendant that was in the courtroom at the time that
you testified?
A Yes.
Q And what would that fear be?
A Well, I have several open cases in court right
25 now. There are a lot of individuals that I deal with in the
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C0148 - For People - Direct
street, there are a lot of cases that I have going on; there
are future cases that I'm going to be involved with. It's a
big fear on my safety of who would be in this courtroom if
not just the two defendants and attorneys present.
Q But why if there was a family member, why would
that make you -- why if there was a family member of the
defendant, why would that make you fear your safety, explain
that to the Judge?
A
Well, I don't know who this family member is.
don't know what type of background this family member has.
I deal with a lot of different cases and, for all I know,
they could be a part of a case that I have.
Q And are you still a narcotics officer?
A
I'm in -- I do cases for narcotics, I do cases for
Vice, I do cases for
rearm investigations; I do cases for
human trafficking.
Q
And you're aware that this is a prostitution case?
A Yes.
Q But even though you're not -
THE COURT: You know what? I'm going to stop
you. I'm sorry. I need to pause on that, for the
undercover officer to just go back in the room for one
second. I need to just put something on the record.
MR. REED: Yeah.
(Witness exited the courtroom.)
I
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THE COURT: What I would have to ask at this
time and, Counsel, you all could take a moment to
decide this, I have to ask you the name of the family
member that you want to come to court because People
right now you're being speculative. It has to be more
narrow. So I have to put it upon the defense to
disclose that information and
J
you, in turn with that
information, you may want to do some research.
MS. ALPERT: Would it be possible to also get
his birth date so that we could actually find out who
he is?
THE COURT: Those are the questions that
you -- I'm going to give them a moment to see if they
want to
MR. REED: Could we make a formal request on
the record for this individual's name and birth date?
THE COURT: Yes, you may.
MR. REED: Your Honor, at this time the
People are requesting the name and birth date of the
individual that is proposed to be Ms. Malandri's
fiancee, and the same person that we served the
subpoena who disappeared.
MR. STRAZZULLO: I'm going to
THE COURT: You, guys, take a moment. You
know I'm not in a rush.
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MR. STRAZZULLO: Your Bonor, I'm going to
have -- Your Honor, I'm going to have Ms. Malandri get
in touch with him right now to see if he does want his
name revealed and birth date
THE COQRT: Okay.
MR. STRAZZULLO: And wants that type of
intrusion into his life.
THE COURT: And I respect that, but I think
that we're having a hearing about nothing at this
point -
MR. STRAZZULLO: Right.
THE COURT: Because I don't have a name of an
individual -
MR. STRAZZULLO: Right.
THE COURT: I have no background, and really
it's upon the People to investigate because, again, it
can't be just the fact that it's somebody related to
the defendant. That's not enough. The case law is
very clear, as you can see, as to what happened in the
case yesterday, in the State of Georgia; Presley v.
Georgia. So I think that you need more information
before you can proceed with your questioning of the
undercover officer.
MR. STRAZZULLO; And, Your Honor, also, with
all due respect, her fiancee, her driver, whoever this
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person may be, he may have to be represented by
counsel. He may have to have his own
THE COURT: No -- see and I understand that.
MR. STRAZZULLO: Right.
THE COURT: But the fact of the matter is
that the People have a burden at this point, but
they're proceeding with nothing.
MR. STRAZZULLO: But I have to advise him of
that right. I just have to.
THE COURT: And I understand that.
MR. STRAZZULLO: 11m not -- you know, 11m
Ms. Malandri's attorney, not this individualls
attorney, you know.
THE COURT: Okay.
MR. REED: And just to let you know, we are
going to do an investigation to see actually who this
person is.
MR. STRAZZULLO: Well, that's ne.
MS. AL-SHABAZZ: Judge
MR. REED: Rap sheets, all that.
MS. AL-SHABAZZ: I am in -- at a disadvantage
because this officer and his tailored testimony,
testified differently then he's testifying today at the
Hinton hearing. So I want to know if we could get
minutes before we conclude this -
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THE COURT: We do have the minutes.
MS. AL-SHABAZZ: We don't have a copy of
them,
THE COURT: What I will do, is I will get you
a copy because I know I had minutes. We have minutes.
So what r will do is make a copy, three copies
MS. AL-SHABAZZ: Thank you, Judge.
THE COURT: And you could have a moment to
review them for -- we're going to have to deal with
this tomorrow.
So what I will do at this point is make a
copy and hopefully -- but you know what? Before we
leave, we'll find out information because the People
need to do a background check and I want to start that
by tomorrow, and also we have to start tomorrow at 10
o'clock
MR. REED: Okay.
THE COURT: So we'll put that -
MS. ALPERT: We'll wait for the information.
THE COURT: Okay, but, in the meantime -
MS. AL-SHABAZZ: He has to make the call.
THE COURT: Well, let's find out what he's
doing first.
MR. STRAZZULLO: Okay, let me call him and
we'll take it from there.
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MR. REED: Judge, we want to put whatever
information they give us, we want to put it on the
record. That's going to be the same information that
we research.
THE COURT: Of course. We're going to do
that, but if he says he doesn't want any part of this,
then it's mute at this point.
MR. REED: Okay.
(Whereupon, there is a recess taken.)
(Back on the record.)
MR. STRAZZULLO: Your Honor, Salvatore
Strazzullo for Ms. Malandri. I did speak to him. I
advised him about his rights. To be frank, Your Honor,
he spoke -- I mean, it's not everyday, you know, you
get asked for your name, social security number; date
of birth. Anyway, he doesn't want anything to do with
it, and we do take exception with the conduct that
brought us to this moment.
MS. AL-SHABAZZ: I do believe -- and this is
Ikeia AI-Shabazz speaking. I do believe that the
People have to still specify that this undercover has a
particularized fear from a family member whether he
knows their name or not. From this fear -- and I
recall during the Hinton hearing, I know I asked him
that question which is why I want to see the minutes.
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So I don't think that continuing with the hearing will
shed any light on the fact, unless the People are going
to ask him about whether he has a particularized fear
of any family member of hers, in particular, or friends
of hers
THE COURT: Unfortunately, the law is very
clear. It's too broad. It has to be specific. All
the cases that I've seen or read thus far and, believe
me, I have read numerous
MS. AL-SHABAZZ: Right.
THE COURT: There were specific information
pertaining to names, date of birth, and specific
questions were asked, but you can't, you know
MS. AL-SHABAZZ: Right, but my argument is
that it's ln the reverse. It's the People who usually
come forward and say, "We have a factual basis that
your cousin is a Blood and shouldn't be in court
today."
THE COURT: But also in view of the case law,
what happens is, the cases that I've seen and, again,
I'm sure there are some out there that may say
something a little bit differently, is that during the
course of the Hinton hearing, the defense that puts the
Court on notice of the particular family members that
you want present.
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In fact, I was looking at one case in
particular where the defense brought it to the
attention that they wanted a mother, an aunt, an uncle
to be at the -- to be present during the trial, and all
that was considered, and the People had an opportunity
to ask the undercover officer specific questions about
those individuals, and the Court made a decision that
those family members had the right to be present.
However, once the trial begun, the counsel
defense brought to the Court's attention that there
were other family members that they wanted to
participate or to be in the courtroom and the Court
denied the application because when the time to do it
was at the Hinton hearing to let the Court know about
that.
So really I'm not sure who has the burden to
bring it to the Court's attention. I just knew
yesterday what I did, in light of the fact that we had
the undercover officer, I had the court officer get the
name of the individuals 1n the courtroom and who they
were, 1.e. court reporter, fiancee. So that why I felt
that I had to put that on record to, one, protect
myself, to protect their constitutional rights. So I
don't know who has the burden, _but when it should have
been done is at the Hinton hearing.
I think it's a
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learning experience
all of us, that if it should
happen aga , that it has to be addressed specifically
as to who you want present, and it gives the People the
opportunity to do a background check on those
individuals, and ask whatever specific questions they
need to ask.
MR. STRAZZULLO: Thank you, Your Honor.
Thank you.
THE COURT: So -
MR. REED: So where are we at now?
THE COURT: I will see you tomorrow at
10:00 o'clock.
MR. REED: And are we still addressing this
issue or
THE COURT: No, we are not.
MS. AL-SHABAZZ: No. We have an exception.
I still think this is reversal error. I don't think -
whatever. I'm not going to make another long record.
MR. REED: But, Your Honor, if the witness
was to change his mind and suddenly wanted to appear
with Ms. M a l a n d ~ i tomorrow what would your ruling be?
MS. AL-SHABAZZ: Objection. We can't do a
speculative ruling when we have a partial hearing.
THE COURT: No, no. I can do speculative.
My ruling would be this. If in light of what happened
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today and, again, as I said, this is a new area for all
of us, if he decided that he wants to be in the
courtroom tomorrow, I would have you -- I would reopen
the Hinton as long as the counsel provides his name and
his information, you'll have sufficient time to do
whatever background check, and then we would visit it,
or you could ask the questions to the undercover
officer at that time.
MR. REED: And just to be clear, would
that -- that would refer to any family member or
friend?
THE COURT: No, that one specific. Unless
there is somebody else that the Court should know that
may come tomorrow.
MR. MOSER: My client's father has been here
before. He's a New York City Police Officer.
THE COURT: Okay.
MR. MOSER: He might come. We'll find out.
He's never wanted to corne to the trial. He's been at
court appearances, but he's not here. If he ever shows
up -
THE COURT: All right. This is what we'll
do. At 10 o'clock, tomorrow, if there's a change in
circumstance let-me know. If you find out that the
the defendant wants her - Rodriguez's father wants to
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be in the courtroom, that would be the o p p o r t u ~ e time.
After that, then we'll just close it from there.
MR. MOSER: Okay.
THE COURT: Because the hearing, I think, is
going to be longer than the trial.
MR. STRAZZULLO: 10:00 a.m. tomorrow?
THE COURT: 10:00 o'clock.
(Whereupon, court is recessed and the
case adjourned to Thursday, January 21, 2010 at
10:00 a.m.)