By Jeremy Walsh
A Queens Supreme Court judge denied motions by state Sen. Hiram Monserrate (D-East Elmhurst) to throw out his indictment and suppress evidence in his pending case on assault charges last Thursday, setting a Sept. 14 start date for his trial.
In a 20-page opinion, Queens Supreme Court Judge William Erlbaum dismissed claims by Monserrate’s defense lawyers that video evidence was improperly presented to grand jurors and refused to release grand jury minutes.
Monserrate was arrested Dec. 19 after getting into a fight with his girlfriend, Carla Giraldo, and allegedly slashing her face with a broken glass. He was charged with assault and could face up to five years in prison if convicted.
Monserrate, who showed up in a dark gray suit, had no comment. Giraldo has appeared at previous court dates but was not present for last Thursday’s hearing.
“Today was a day that for the defense … was a day of great relief,” the senator’s attorney, Joseph Tacopina, said after the hearing. “It’s now the beginning of the process to exonerate Sen. Monserrate.”
The six-minute, 37-second video in question — surveillance camera footage taken in the hallway of Monserrate’s Jackson Heights apartment building — was compiled by police from footage containing either Monserrate or Giraldo. Defense attorneys argued that prosecutors presented the tape to jurors as if the events that happened over several hours elapsed over a few minutes, but Erlbaum noted that the footage was time-stamped and grand jurors were informed.
The footage does not show Monserrate dragging Giraldo down a flight of stairs, as officers originally described the tape, but “it appears that he may have been dragging the alleged victim away from a neighbor’s door, from a railing and out of the building,” Erlbaum wrote.
Erlbaum also rejected the defense’s attempts to throw out the indictment based on the fact that one of the grand jurors was a police officer who recognized an officer testifying as a former co-worker.
“It appears from these affidavits that the parties never had a personal, social or significant professional relationship and that their past contact ceased years ago,” Erlbaum wrote.
The judge also upheld the use of Giraldo’s statements to doctors at Long Island Jewish Hospital, where Monserrate drove her after the incident. Tacopina had moved to have the indictment dismissed because out-of-court statements are typically regarded as hearsay evidence in grand jury proceedings.
Erlbaum ruled that because Giraldo was holding a towel to her bleeding face and “was described by medical personnel as visibly upset, sobbing, hysterical, angry, very worked up, a little frantic and crying, her remarks qualified as “excited utterances,” a legal precedent for comments made by someone too upset to be untrustworthy.
Reach reporter Jeremy Walsh by e-mail at jewalsh@cnglocal.com or by phone at 718-229-0300, Ext. 154.
