United States District Court, S.D. New York
January 5, 2004.
UNITED STATES -v- ANTHONY ADETUTU, Defendant
The opinion of the court was delivered by: DENISE COTE, District Judge
OPINION AND ORDER
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).
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.
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 . . . 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.
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
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
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
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.
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