The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
This is a decision following a Violation of Supervised Release Hearing. In this case, William H. Robinson ("Robinson" or the "Releasee"), the Releasee, was accused of four charges of Violation of Supervised Release. In the initial Violation of Supervised Release Report, dated January 7, 2010, there were two charges, as follows: Charge No. 1: New Criminal Conduct: Attempted Assault in the First Degree
On or about, December 31, 2009, the offender violated the following mandatory condition of supervised release: "The defendant shall not commit another federal, state or local crime." To wit: on the above date, the offender committed a new state crime by attempting to assault another individual with a deadly weapon, in violation of New York State Penal Law.
Charge No. 2: Association with an Individual Engaged in Criminal Activity
On or about, December 31, 2009, the offender violated the following standard condition of supervised release: "The defendant shall not associate with any persons engaged in criminal activity and shall not associate with any person convicted of a felony, unless granted permission to do so by the probation officer." To wit: on December 31, 2009, the offender did associate with Shallicke McRae, who was engaged in criminal activity.
On January 20, 2010, Probation Officer Stickley filed a "Supplemental Violation," in which two additional charges were initiated, as follows: Charge No. 3: New Criminal Conduct: 18 U.S.C. § 1001, False Statements
On January 8, 2010, the offender violated the following mandatory condition of supervised release: "The defendant shall not commit another federal, state or local crime." To wit: he committed a new federal crime by making false statements to the Probation Department about knowing Shallicke Yuhara McRae.
Charge No. 4: Association with a Known Felon
During January 2010, the offender violated the following standard condition of supervised release: "The defendant shall not associate with any persons engaged in criminal activity and shall not associate with any person convicted of a felony, unless granted permission to do so by the probation office." To wit: the offender knowingly associated with Shallicke Yuhara McRae, a convicted felon.
A hearing was held in this matter on January 11, 2010, February 19, 2010 and March 5, 2010.
This memorandum opinion sets forth the Court's decision.
According to the provisions of 18 U.S.C. § 3583(e)(3), the burden of proof in a Violation of Supervised Release Hearing is "by a preponderance of the evidence." In such a hearing, the Releasee is entitled to written notice of the violation; disclosure of the evidence against him; an opportunity to appear, present evidence and question any adverse witness; an opportunity to make a statement and present any information in mitigation. See Federal Rules of Criminal Procedure 32(b)(2).
It is well settled that "the full panoply of rights" due to a defendant in a criminal prosecution does not apply to violations of supervised release hearings. See United States v. Pelensky, 129 F.3d 63, 68 (2d Cir. 1997). "Because revocation proceedings generally have not been considered criminal prosecutions, they have not been subject to the procedural safeguards, including the rights to trial by jury and to accusations proved beyond a reasonable doubt, associated with a criminal trial." United States v. Carlton, 442 F.3d 802, 807 (2d Cir. 2006). See Pelensky, 129 F.3d at 68; United States v. Lettieri, 910 F.2d 1067, 1068 (2d Cir. 1990); see also United States v. Knights, 534 U.S. 112, 120, 122 S.Ct. 587,592, 151 L.Ed.2d 497, (2001); 18 U.S.C. § 3583.
Indeed, the Supreme Court has instructed that "the process should be flexible enough to consider evidence including letters, affidavits and other material that would not be admissible in an adversary criminal trial." Morrisey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972). See also Gagnon v. Scarpelli, 411 U.S. 778, 782, N.5, 93 S.Ct. 1756, 1760 N.5, 36 L.Ed2d 656 (1973) (The Court does not "intend to prohibit use where appropriate of the conventional substitutes for live testimony including affidavits, depositions and documentary evidence."). Also, reliable hearsay evidence may be admitted as a substitute for live testimony. United States v. Pratt, 52 F.3d. 671, 676, 677 (7th Cir. 1995).
Odessa Goins has worked for a health care union for 20 years. She recently married Darryl Goins, who was released from prison approximately one year ago. She related two incidents involving the Releasee. On Christmas Eve 2009, she and Darryl went shopping at the Green Acres Shopping Center. As they were leaving the mall, she saw two men outside the mall. She heard one man say "they have something for him" and one man reached his hand under his coat. One man was a dark skinned heavy set man. The other was medium height and light-skinned. Mrs. Goins then identified the Releasee as one of the men but not the one who made the gesture. Then she and her husband left the area.
The second incident occurred on New Year's Eve 2009. At about 6 p.m., Odessa and her husband were going to the movies and she decided that first she would wash clothes at a laundromat on Jerusalem Avenue. They walked over to a Carribean food store, "to get something to eat". Outside of that store she noticed the same two "guys" that she saw at the Green Acres Mall. The witness identified the Releasee in Court as one of the two men. Odessa saw the Releasee make the same gesture, as was done earlier at the Green Acres Mall, namely he was about to pull something out of his coat, "They said what they were going to do to him." (Tr. 10). Then they turned to walk away and Odessa heard two shots.
She didn't see who fired but she knows that it was the Releasee "because he's the one that did the gesture." (Tr. 10). When the shots were fired she was facing away from them. At that point, her husband pushed her out of the way and "they left the area in a hurry". (Tr. 12).
After she heard the shots she noticed one vehicle, a silver Charger, with black tinted windows with lights like diamonds in a row.
On January 7, 2010, Odessa was driving home from work with her husband, when he received a cell phone call. She overheard a man's voice and a girl's voice who said "I give up. You win." (Tr. 13). She did not recognize either voice.
On cross-examination, Odessa testified that she does not know William Robinson and she never saw him before December 24, 2009. However, her husband Darryl told her about him, calling him Billy. He told her there was an old grudge between the two, in the past, and that there was bad blood between them. She assumes that the dispute between them was over drugs. Her husband was involved in drugs and fighting and was released from jail in June 2009. Her husband reported the Jerusalem Avenue incident to his Parole Officer. She did not report the incident to the police. Her husband reported it to the police about five days later. Odessa testified that she does not know whether the man she observed on December 24th moved his right hand or his left hand, but she heard him say, "I have something for you."
With regard to the New Year's Eve incident, Odessa testified again that the Releasee said "I'm going to get you - I have something for you."
A: And then I heard another shot.
Q: What did you hear him say?
A: I'm going to get you. I have something for you. I'm going to get you. Tr. at 35.
She heard two shots but does not know who fired them. Odessa stated that the two men were about 40 feet away but were close enough for her to see their faces and bodies. She heard no windows shattering or bullet hitting a car.
Odessa Goins was recalled in the Releasee's case and was shown photographs of the Jerusalem Avenue area. Although she was not entirely precise in describing where the incident occurred and her testimony was somewhat vague in that regard, she again stated that she was on the side by the laundromat and was walking to the Carribean restaurant. Odessa was by the Carribean restaurant when she heard the first shot. She froze and turned around. Her husband pushed her back. She looked across the street and recognized the same two men she saw in the prior Christmas Eve incident. She began running away from the men and toward her car. Odessa recognized the Releasee's face in the photograph shown to her.
Odessa Goins was not a totally persuasive witness, but the Court finds her to be believable.
The Court would characterize Darryl Goins as a strange and difficult witness, who declined to answer questions responsively on many occasions. To begin with, on the first day he testified, January 11, 2010, he had just been released from the hospital that morning. He stated that he was suffering from chronrchitis, asthma and the flu. In addition he takes medication for depression and sees a therapist. Darryl had an extensive criminal history including eight felony convictions and was released from his latest incarceration in January 2009 after his most recent 6-year term. He used and dealt with drugs and had a weapons conviction. He is currently in drug therapy and tested positive as recently as November 3, 2009.
Darryl recognized and identified the Releasee in Court. He knows the Releasee by the name of Billy Latson from his days as a drug dealer and knows his mother. Darryl testified that he had a dispute with the Releasee's partner Shallicke McRae. He stated that there was jealousy and hatred among drug dealers including the persons involved in this case. It seems that Darryl and McRae were competitors in the drug dealing field.
With regard to the Christmas Eve incident at the Green Acres Mall, he saw McRae and Robinson, and they exchanged stares. McRae went to reach for a gun and Robinson, who he identified in Court, said "No, the police is right there." They immediately left. On Monday, December 28, 2009, he reported this incident to Gerald Finklestein, a Counselor at his drug treatment program. He also reported the incident to the partner of his Probation Officer and later, also to the Hempstead Police Precinct, and was told to report it to his Probation Officer. He said he didn't go to the police originally because "he doesn't go to the cops for nothing." He lives by the street code.
As to the New Year's Eve incident, Darryl related that his wife wanted to get her hair done, at the Magdalena Beauty Parlor, stop at the laundromat and eat at the Carribean restaurant. They never had a chance to go to any of these places. He heard a bang, loud and clear. It sounded like a shot. He turned around. His wife said "Ain't that the guy that was at the Green Acres Mall." She was referring to McRae. He saw McRae reaching for his gun and he pushed his wife aside. He then heard another shot. He saw Robinson, and it appeared that he had something in his hand. Darryl testified that Robinson had fired the shot because McRae was still reaching for his gun. However, he never saw Robinson ...