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State v. Kolko

Criminal Court of the City of New York, Kings County

July 30, 2012

The People of the State of New York
Joel Kolko, Defendant.

Charles J. Hynes, District Attorney (Elizabeth Doerfler and Allegra Santomauro, Esqs. of counsel), for the People.

Jeffrey Schwartz, Esq., for Defendant.


Following a trial on two counts of Criminal Contempt in the Second Degree (Penal Law § 215.50(3)), Defendant Joel Kolko was acquitted by the jury, which returned its verdict within ten minutes of the case being submitted for deliberation. The following day, the District Attorney, after being contacted by two persons present in the courtroom during the trial, asked the Court to conduct an inquiry of Juror No.6 and the mother of that juror, who had also been present in court during the trial, as to possible improprieties. By separate motion, the People asked the Court to stay sealing of the case to allow for investigation. For the reasons set forth below, the Court finds that the People have not shown sufficient basis to breach the wall of juror confidentiality, and denies the People's motions.

Background and Prior Proceedings

In 2007, Defendant, an elementary school teacher at Yeshiva Torah Temimah in Brooklyn, was indicted for allegedly sexually abusing (Penal Law § 130.65) Fischel (last name omitted), who had been a student in Defendant's first grade class. In 2008, Defendant pleaded guilty in Supreme Court, Kings County, to two counts of Endangering the Welfare of a Child (PL § 260.10), a Class A misdemeanor, in satisfaction of the felony indictment as well as a second indictment, and was sentenced to three years' probation, and a final Order of Protection requiring him to stay away from Fischel. Subsequently, Defendant was arrested on the instant misdemeanor complaint, charging him with contempt for two separate occasions (November 5, 2010, and November 12, 2010) where he allegedly violated the Supreme Court Order of Protection. Trial commenced before me on June 18, 2012, with selection of a jury and pretrial motions.

The Trial

The Court made several significant rulings prior to commencement of voir dire. The People made Sandoval [1] and Molineaux [2] applications, which sought to bring to the jury's attention the details of Defendant's convictions for Endangering the Welfare of a Child, and Defendant's pending charge of violating his probation by allegedly traveling to upstate New York without first obtaining permission. Holding that the prejudice to Defendant would outweigh the probative value of the details of the convictions, the Court ruled that should Defendant testify, the People could ask, on cross-examination, only if he had been convicted of crimes or misdemeanors, without specifying the crime or mentioning the underlying factual allegations of sexual abuse. The Court was advised that the underlying allegations were also the subject of a civil suit, albeit against the Yeshiva rather than Defendant, based upon the claim that Defendant sexually abused Fischel, for which large monetary damages were sought on grounds of negligent hiring, supervision and/or retention of Defendant. The Court permitted inquiry into the existence of the civil lawsuit (defense counsel ultimately chose not to cross-examine as to the civil suit), and ruled that there was to be no mention of its factual allegations regarding sexual abuse, but that the parties were to mention only "allegedly wrongful acts purportedly committed by Defendant against Fischel, " without specification that those acts were sexual in nature.

The trial was vigorously prosecuted and defended. Because the matters regarding Defendant (both the earlier cases and the current case) were the subject of newspaper and other media coverage, several venirepersons who were familiar with Defendant or the charges against him, either from the media or from community discussions, were excused. In addition, at the request of defense, counsel were given additional time, the amount of which they agreed was sufficient, beyond that ordinarily allowed by the Court, for voir dire to ferret out any bias of potential jurors. A jury and alternates were then chosen over a period of two days.

The case involved two alleged violations of the Order of Protection. On November 5, 2010, Defendant was alleged to have violated the order by walking up to Fischel and his father, passing Fischel "shoulder to shoulder, " and saying "good shabbos" or "good sabbath." Defendant was alleged to have again violated the order on November 12, 2010, by staring at Fishel, then 12 years old, for a period between ninety seconds and two minutes, with Defendant's arms purportedly folded in front of him. Both alleged violations were claimed to have occurred as Fischel and his father, David, were walking to synagogue just prior to sunset to observe the oncoming Sabbath, as they did virtually every Friday.

The testimony established that Defendant's residence was very near that of Fischel and his family, and is located on the shortest and most direct route from Fischel's house to his synagogue. David testified that because he has difficulty walking, it was impractical for him to utilize a longer route that would not bring Fischel past Defendant's residence. Fischel testified that on various occasions, he would pass Defendant's residence without incident on the way to his friend's house, in addition to the many times he passed on the way to synagogue without encountering Defendant.

In his opening, defense counsel argued, among other things, that this case was analogous to popular cartoons with a cat and a mouse, except here the mouse was chasing the cat. This analogy was repeated in summation, with counsel arguing that Fischel's family was using this case as a vehicle to get Defendant out of their neighborhood. The groundwork for this argument was pursued with vigor upon cross-examination of Fischel's father, David, who was physically present walking with Fischel on both dates at issue and testified as a prosecution witness.

Following David's testimony, the People sought to have the Court reconsider its Molineaux / Sandoval rulings, arguing that the cross-examination of David as to motive, coupled with defense counsel's opening argument as to the "cat and mouse, " opened the door and made it imperative, to prevent jury speculation and confusion, that the jury be informed as to the specifics of Defendant's convictions if not the underlying allegations of Defendant's sexual abuse of Fischel. If the jury had knowledge of these specifics, it would dispel the notion that Fischel's family was engaged in a vendetta against Defendant, or was merely hypersensitive. The Court declined to hold that the cross-examination and defense opening statement opened the door to introduction of these specifics.

While mention of the sexual abuse charges was prohibited by the Court, the People established, through Fischel, that Defendant had been his first grade teacher in 2006. The Court denied Defendant's motion for a mistrial, which asserted that such testimony violated the spirit of the Court's pre-trial rulings and prejudiced Defendant in light of the media publicity regarding not only Defendant, but other cases where teachers were charged with sexually abusing their students. After denial of Defendant's motion for a mistrial, defense counsel introduced into evidence the class photograph of Fischel's first grade Hebrew Studies class, showing Defendant as the teacher and Fischel among the students.

The People presented the testimony of Fischel; David; the arresting officer; an investigator who testified as to a street map he created showing the respective residences of Fischel and Defendant, as well as the synagogue towards which Fischel and David were walking on the dates at issue; and a Clerk of Supreme Court, Kings County to provide the foundation for introduction into evidence of the Order of Protection. The Court denied Defendant's motion for a trial order of dismissal, holding that the evidence presented was sufficient to make a prima facie case. Defense counsel, although previously indicating that he might call as many as ten witnesses, including the third individual walking with Fischel and his father on the November 12 incident (all of whose names were read to the jury as part of the Court's voir dire), rested without calling any witnesses.

During the trial, the Court carefully instructed the jury, at every recess, that they were forbidden from discussing the case among themselves and with anyone else until the case was submitted to them for deliberations, that they were to ignore any of the parties, lawyers, and the Court itself should they encounter them during recess, that they were not to go to the scene or conduct any research, and that they must not read or view any publicity about the case. The parties and counsel were similarly instructed not to communicate with any jurors. Moreover, due to pre-trial publicity concerning Defendant, the Court obtained a specific pledge from each juror to refrain from conducting any internet research regarding any of the parties, witnesses, or counsel on the case.

After a day's recess due to the absence of Juror No.3, and over the objections of defense counsel, who requested that Juror No.3 immediately be discharged, an alternate be seated and summations commenced forthwith, extensive summations were given by counsel upon the return of Juror No.3 the next morning. (Defense counsel's summation lasted more than one hour.) In addition to the "cat and mouse" argument, defense counsel argued lack of intent, an element of contempt, as evidenced by the many times Fischel walked past Defendant's residence without incident. The People's summation included a vivid demonstration where the Prosecutor remained silent before the jury, without objection from defense counsel, while timing ninety seconds on her watch to give the jury the feeling of being stared at for that period of time, as Fischel testified the Defendant did on November 12, 2010.

The Court repeatedly reminded the jury that it could request the exhibits, particularly the Order of Protection, and did not have to rely on the claims of counsel as to its language. Following the Court's charge, the jury returned its verdict within ten minutes, without requesting any exhibits, finding the Defendant not guilty on both counts. At the Court's initiative, the jury was polled, and each juror individually confirmed the verdict.

The Court then expressed its thanks to the jury for their service, and advised the jury, as well as the alternates, that they could now speak freely regarding the case. The Court, being aware of press coverage of the trial, further advised the jury that they were also free to refrain from speaking, as they each sought fit. The Court did not grant anyone any special access to the jury after dismissing them.

The next day, the Court received a letter from the District Attorneys dated June 26, asserting that two people, Ben Hirsch and Hella Winston, had witnessed certain events which gave rise to concern as to possible juror misconduct with regard to Juror No.6. The Court directed that a ...

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