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
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,
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.
18 U.S.C. § 3583(e)(3). See United States v. Sanchez, 225 F.3d 172,
175 (2d Cir. 2000).
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.
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.
The specification charges Adetutu with a violation of N.Y.
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 . . ...