The opinion of the court was delivered by: VIKTOR V. Pohorelsky United States Magistrate Judge
REPORT AND RECOMMENDATION
The government has charged the defendant Luis Matta with three violations of the conditions of supervised release that were imposed on him following his conviction as a felon in possession of a firearm. Two of the charges -- the commission of two crimes in violation of state law -- arise from an incident in which Matta was accused of striking Shavon Coakley, the mother of his daughter, leading to his arrest on charges of assault and menacing. The third charge, use of a controlled substance, arises from Matta's consumption of cocaine while incarcerated at Riker's Island following his arrest on the assault and menacing charges. Judge Irizarry has referred the matter to me to conduct a hearing and prepare a report and recommendation concerning the charges.
An evidentiary hearing concerning the charges was held on November 13, 2012 at which Coakley testified, as well as two New York City police officers -- Stanislov Yakovlev and Kenneth Wieber -- and United States Probation Officer Yara Suarez. Based on their testimony, and the other evidence introduced at the hearing, I make the findings and reach the conclusions below.
Ch arg e s On e an d Tw o Co m m is s io n o f th e Crim e s o f As s au lt an d Me n ac in g At approximately 10:00 p.m. in the evening of August 25, 2012, shortly after Coakley arrived at a birthday party to pick up their child, Matta struck Coakley repeatedly with such force that he broke her jaw. Coakley did not seek medical attention immediately, however. Rather, the following day she was driven to Beth Israel Hospital -- Kings Highway Division in Brooklyn by a male friend named Jason, where X-rays confirmed her injury, GX 2, Page 5 of 12, and she received treatment, GX 2 passim.*fn1 Hospital records disclose that when questioned by medical personnel concerning her injury, she initially declined to elaborate because she did not want the police involved, but ultimately disclosed that she had been struck by the father of her daughter. GX 2, Pages 1, 2, 6 and 8 of 12; Tr. 66-70. As a result, hospital personnel contacted the police, and patrol officer Stanislov Yakovlev and his partner went to the hospital to question Coakley about the incident. Tr. 8-9.
When Yakovlev arrived he found Coakley on a bed in the emergency room, accompanied by her friend Jason. He observed that Coakley had redness on her left cheek and on her neck. Tr. 10-11. She disclosed to him that when she went to pick up her child from the father, Luis Matta, on the previous evening, a verbal altercation ensued and that Matta eventually grabbed her by the neck and punched her several times in the face. Tr. 12.*fn2
Coakley provided Yakovlev with the father's name, address and date of birth which were recorded on a piece of scratch paper from Yakovlev's notebook. GX 1; Tr. 15-16. She also provided her own name, address and date of birth on the paper, as well as the name of her and Matta's child. Id. In addition, Coakley wrote out and signed a statement concerning the assault in which she confirmed what she had told Yakovlev about the events of the previous evening. GX 7; Tr. 12-14, 47.
A month later, on September 24, 2012, Matta was arrested by Detective Investigator Kenneth Wieber of the New York Police Department. Upon being told that he was being charged with an assault on Coakley, Matta told Wieber he did not understand why she was making such an allegation. Matta said Coakley had told him that she had been injured at Cooper Park; that she had been drinking; that she stepped out of the park and was on the sidewalk when someone ran by and bumped into her, causing her to fall. Tr. 27-28. Matta wrote and signed a statement which confirm the oral statements he made to Wieber. GX 3500-KW-5.
Wieber then called Coakley, to whom he had not spoken before. When told that Matta had just been arrested for assaulting her in August, she became annoyed and told Wieber that her prior statement that Matta had punched her was wrong. Tr. 29-30, 35. She attributed her prior statement inculpating Matta to being "drugged up" in the hospital. Tr. 30. Instead, she provided Wieber with essentially the same explanation about an accidental bump precipitating a fall that Matta had just given. Id.
When informed of Matta's arrest, the United States Probation Officer who had recently been assigned to supervise him, Yara Suarez, began her own investigation. She spoke to Coakley on September 26, 2012, two days after Wieber had spoken to her. In the interim, Coakley's story had changed yet again. She told Suarez that her jaw was broken when she was jumped from behind and robbed on the evening of August 25. She told Suarez that she was on her way to a cookout that Matta and her daughter were attending when the robbery occurred, that she had been punched in the face, and that her pocketbook had been stolen. Tr. 62.
Coakley's own testimony at the hearing largely mimicked what she had told Suarez about the events that caused her injury, although the robbery now did not involve her pocketbook but rather a gift bag that she had been carrying with the intention of presenting it at a birthday party that was being held in Cooper Park. Tr. 40-42. She said she did not see the person or persons who attacked her. Tr. 50. She denied that Matta had caused her injuries. Tr. 54. She testified that she did not recall what she had told the police at the hospital, or that she had written out the statement introduced by the government, but she did recall with specificity that she had been given morphine, demerol, and percocet before the officers arrived. Tr. 55. She confirmed that surgery was required to repair her broken jaw, including the insertion of two metal plates, and that she remained in the hospital for a number of days after she first visited the emergency room. Tr. 51-52.*fn3
There is little doubt in my mind that the only truthful statements Coakley has made about the events that caused her injuries were those made at the hospital to medical personnel and to police officer Yakovlev. Those statements implicating Matta were repeated on multiple occasions, to multiple persons. Her later efforts to attribute those statements to some sort of drug-induced state are not supported by the evidence. The hospital records disclose that the first administration of medication did not occur until 17:15, or 5:15 p.m. GX 5, page 2 of 12 (under heading "Flowsheets," sub-heading "Medication Administration").*fn4 By that time, Coakley had already told the triage nurse Deborah Radigan that she knew who her assailant was, in contradiction to her testimony at the hearing, but did not want a police report made. GX 2, page 1 of 12 (under heading "Triage").*fn5 That statement was made at 14:15, or 2:15 p.m. Then, again before any medication was administered, at 16:30 (4:30 p.m.) she told Palwasha Mahir, a physician's assistant, that it was her daughter's father who punched her. GX 2, page 2 of 12 (under heading "History of Present Illness," sub-heading "Note"). She again made statements specifically identifying Matta as her assailant not only to officer Yakovlev at approximately 6:15 p.m., GX 2, page 5 of 12 (under heading "Progress Notes"), but also to Doctor Leo Menkes at 18:04 (6:04 p.m.), GX 2, page 6 of 12 (under heading "Physician"). As noted above, the only medication administered prior to the latter two statements was 30 mg of Ketorolac (Toradol) at 5:15 p.m.; there was no testimony or other evidence concerning the effect, if any, that Ketorolac may have on cognitive abilities. Contrary to her testimony, Coakley never received morphine or demerol that afternoon or evening, and the only time she received percocet was at 19:12 (7:12 p.m.), well after she had made all of the statements noted above identifying Matta as her assailant. GX 2, page 2 of 12 (under heading "Flowsheets," sub-heading "Medication Administration").*fn6
There are other indications in the documents and medical records prepared while Coakley was at the hospital that she was fully cognitive. The information she provided on GX 1 concerning her and Matta's date of birth, her address, and her child's name was all proved accurate by other evidence at the hearing. Compare GX 1 with Tr. 29, 37-38 and GX 2500-KW-5. The statement Coakley herself wrote out and signed is entirely lucid. GX 7. The neurological examination conducted at about 4:37 p.m. found her "alert and oriented to person, place, and time. Sensory and motor functions are grossly intact. Speech is normal. Appearance and judgment [sic] seem appropriate for gender and age." GX 2, page 3 of 12 (under heading "Exam"). She denied having "slurred speech, vision changes." GX 2, page 2 of 12 (under heading "History of Present Illness," sub-heading "Note"). When a CT scan was proposed, she refused because that required her to remove her hairpins and hair weave. The records note that she "was explained risks of refusing, verbalized understanding, has capacity to refuse." " GX 2, page 5 of 12 (under heading "Progress Notes").
There are a number of reasons to disbelieve Coakley's later statements and testimony disclaiming Matta's involvement in the assault. First, it is clear that from the outset she has wanted to protect Matta. She initially declined to identify Matta at the hospital, and stated repeatedly that she did not want the police involved. She thus had no incentive falsely to accuse him of the assault. But once she learned that the police had arrested Matta for the crime, that desire to protect him furnishes the explanation for why she changed her story about how her injuries occurred, not once but twice.
There are other indications in her various versions of events that demonstrate the falsity of the explanations about her injuries that she gave first to Detective Wieber, then to Probation Officer Suarez, and finally to the court at the hearing. For example, she testified that she had spoken to Matta on a number of occasions in September after the injury but before he was arrested. Tr. 56. She was very vague, however, about when she told him about the assault and robbery, and denied that she told him about it the first time she saw him after it occurred. Tr. 44. That alone, is incredible, but there is more. She eventually conceded that she did tell him about the supposed robbery at some later point. Tr. 45. She also said she spoke to Matta's mother about the supposed robbery in early September. Although she was again quite vague about when she told Matta about the supposed robbery, Tr. 45, she was adamant that she had not spoken to him at any time after he was arrested, Tr. 58, so any such conversation, if it actually had occurred, would have occurred before Matta was arrested. Yet when Detective Wieber called her on the day Matta was arrested, she made no mention of any robbery and assault. Tr. 19-30. Rather, she gave him a story about having been drinking and being bumped accidentally causing her to fall. Tr. 30. Nor did Matta make any mention of any such robbery and assault when he was interviewed by Wieber on ...