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United States District Court, S.D. New York

January 5, 2004.


The opinion of the court was delivered by: DENISE COTE, District Judge


On November 20, 2003, a hearing ("Hearing") was held on the Probation Department's specification that defendant Anthony Adetutu ("Adetutu") had violated the terms of his supervised release. The specification charged Adetutu with violating his probation on June 25, 2003, by committing the state crimes of assault in the third degree and petit larceny. At the conclusion of the hearing, the Court made findings of fact, and scheduled the submission of post-hearing briefs to address the legal standards that should apply here. Having reviewed the parties' post-Hearing submissions, and based on the record created at the Hearing, the Court does not find that the Government has carried Page 2 its burden of establishing that the defendant violated the terms of his supervised release.

  The specification of violation in the instant case is based on the defendant's alleged assault on his girlfriend ("the Victim") and his taking of her jewelry, watch and cell-phone, as described in an arrest complaint of June 26, 2003. At the Hearing, a Probation Officer testified that the District Attorney's Office had sent him the arrest complaint filed by the Victim against Adetutu. The two page arrest complaint was signed under oath and contained the Victim's description of the incident, including that the defendant struck her face with a closed fist, threw her onto a couch and bit her chest. The complaint reported that the Victim bled from her nose and chest.

  The defendant called an investigator to testify about statements that the Victim made to the investigator and defense counsel some months later, as counsel prepared for the Hearing. Those statements recanted in part the description of events contained in the arrest complaint.

  The Court's authority to impose a term of supervised release as part of a sentence is governed by 18 U.S.C. § 3583. Subsection (e) addresses the Court's power to revoke supervised release and subject the defendant to further imprisonment. After considering various factors, a Court may, inter alia,

  revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release . . . if it finds by a preponderance of the evidence that the person violated a condition of supervised release. Page 3

 18 U.S.C. § 3583(e)(3). See United States v. Sanchez, 225 F.3d 172, 175 (2d Cir. 2000).

 Right of Confrontation

  The defendant contends that the Government violated his Sixth Amendment right of confrontation by not presenting non-hearsay evidence to support the specification, and by failing to establish that it could not obtain the Victim's presence for the Hearing. A defendant's right to confront adverse witnesses in revocation proceedings "is not absolute." United States v. Chin, 224 F.3d 121, 124 (2d Cir. 2000). A court must balance "the defendant's right of confrontation with the government's grounds for not allowing confrontation, and with the reliability of the evidence offered by the government." Id. See Sanchez, 225 F.3d at 175 (defendant entitled to "the right to confront and cross-examine adverse witnesses (unless the hearing officer finds good cause for not allowing confrontation)"). If hearsay testimony is admitted pursuant to an exception to the hearsay rule, however, the Government's grounds for not allowing confrontation need not be considered. United States v. Jones, 299 F.3d 103, 113 (2d Cir. 2002).

  The evidence at the Hearing established that the arrest complaint was in fact the complaint signed by the Victim the day following the assault. Even when the evidence of the recantation is considered, there is still reliable evidence that Adetutu attacked the victim on June 25 and took some of her property. Page 4

  Thus, the Government succeeded in showing through reliable evidence at least some of the events that it asserts occurred on June 25.

  The Government did not, however, show that it had made any concerted effort to obtain the testimony of either the Victim or any other eyewitness to the events of June 25. In this regard, it relied solely on the Probation Officer's report of his futile efforts to obtain the Victim's telephone number from the defendant. The Government did not show that these efforts were sufficient to explain the Victim's absence at the Hearing. Moreover, the Government did not subpoena or call as a witness any arresting officer or other witness who could have described either the Victim's physical state after the assault or contemporaneous statements of the Victim or defendant. Unlike the situation in Chin, the Government here did not make "numerous efforts . . . to locate the complaining witness and compel her to attend the hearing." Chin, 224 F.3d at 124. In addition, the Government has not identified any exception to the hearsay rule to support the admission of the description of the attack and theft contained in the arrest complaint. Therefore, there is a serious question as to whether a finding of a violation would comply with the defendant's Sixth Amendment right of confrontation.

 Petit Larceny

  The specification charges Adetutu with a violation of N.Y. Page 5 Penal Law § 155.25, which criminalizes petit larceny. The petit larceny charge required the Government to prove that the defendant took property owned by the Victim without the Victim's consent and with the intent to deprive the Victim of the property or to appropriate it. N.Y. Penal Law § 155.05. New York law defines "deprive" as "to withhold [property] or cause it to be withheld from him permanently or for so extended a period or under such circumstances that the major portion of [the property's] economic value or benefit is lost to him." N.Y. Penal L. § 155.00(3). To "appropriate" property is defined as "to exercise control over it . . . permanently or for so extended a period or under such circumstances as to acquire the major portion of [the property's] economic value or benefit . . ." N.Y. Penal L. § 155.00(4).

  The defendant admits that he took the Victim's cell phone, but contends that the Government failed to show that he acted with intent to deprive the Victim of the property or to appropriate the property since it did not show that he intended to take the property permanently or for any extended period of time. The defendant is correct. The Government was required to prove that the defendant intended to deprive the Victim of her property permanently, or at least for an extended period of time. See Ponnapula v. Spitzer, 297 F.3d 172, 184 (2d Cir. 2002); People v. Jennings, 69 N.Y.2d 103, 119 (1986). The Government failed to do so. Page 6


  The specification also charges Adetutu with violating New York Penal Law § 120.00(1) by committing assault in the third degree. This crime requires proof that the defendant caused physical injury to another person with the intent to cause such injury to the person or another. N.Y. Penal L. § 120.00(1). Physical injury means the impairment of physical condition or substantial pain. N.Y. Penal L. § 10.00. New York law requires a showing of both subjective and objective elements to establish the existence of substantial pain. People v. Plate, 2003 WL 22976610, at *5 (N.Y.Sup.Ct. Dec. 01, 2003) (collecting cases). The subjective element is established through evidence that the victim of the assault felt "as though she suffered substantial pain." Id. (citation omitted). The objective element, while more elusive, appears to require a threshold level of evidence of a physical injury that could produce pain that was substantial in either its degree or duration. Compare People v. Sloan, 609 N.Y.S.2d 67 (2d Dep't 1994) (victim sought medical treatment for a blackened eye, constant headache, and swollen face as a result of having had her head pushed against a wall), and People v. Livoti, 682 N.Y.S.2d 253 (1st Dep't 1998) (physician confirmed that victim had difficulty eating, sleeping, and speaking as a result of bruised, swollen, and aching neck), with People v. Carney, 579 N.Y.S.2d 157 (2d Dep't 1992) (bruises on arm and neck, without medical report or testimony regarding the nature or extent of victim's pain, was insufficient to meet objective Page 7 test).

  The arrest complaint says "Deponent states that as a result of the actions of the defendant, deponent suffered substantial pain, bleeding to her nose, bruising and swelling to her arms and a laceration and bleeding to her chest." The defendant concedes that he held the Victim's arms, leaving them red. He denies that the other injuries listed by the Victim in her criminal complaint have been proven. The defendant asserts that the injury to the arms is insufficient as a matter of law to constitute physical injury without additional proof regarding the pain the Victim suffered from that injury or without admissible proof of the other injuries.

  The Government showed through reliable evidence at the hearing that the defendant intended to cause substantial pain to the Victim. The altercation was sufficiently loud to prompt neighbors to call the police. The Victim described the assault and her injuries the following day in a sworn complaint. The Victim would not have included the description of her bloody nose and chest unless it was true. She would have been aware that the officers that arrested the defendant could easily contradict her if she lied about such obvious physical manifestations of the assault. The fact that she minimized her injuries when speaking with defense counsel months later is of little weight.

  The Government has not shown, however, that the injuries the defendant inflicted actually caused the Victim any impairment of Page 8 the Victim's physical condition or substantial pain, as that term is defined under New York law. The Government appears to concede it has not offered evidence of any impairment. It does argue, however, that its evidence supports a finding that the Victim suffered substantial pain. The only evidence of the subjective element of substantial pain is in the arrest complaint's conclusory assertion that the Victim "suffered substantial pain." The complaint does not identify the nature of the pain, where the pain was felt, the intensity of the pain, or its duration. Therefore, even if it were appropriate to accept the arrest complaint as admissible evidence, it does not satisfy the Government's burden of proving by a preponderance of the evidence that the Victim actually experienced "substantial" pain.


  The Government has not shown that the defendant violated the terms of his supervised release on June 25, 2003.

  SO ORDERED. Page 1


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