Justice William Erlbaum dismissed counts three and five – assault in the second degree and assault in the third degree under the legal theory for recklessness – in State Senator Hiram Monserrate’s trial, but left the top charges for intent.
The bombshell developments took place on Tuesday, October 6, near the end of the seventh day of Monserrate’s trial, which saw the prosecution rest its case and the defense call its first witness.
Monserrate Defense Attorney Joseph Tacopina co-counsel Chad Seigel argued that all six charges against his client for assault should be dismissed because the prosecution failed to prove any element of its case beyond a reasonable doubt. During an earlier recess Tacopina reiterated that for this reason the defendant had waived his right to a jury trial because based on the law, the D.A. would be unable to meet its burden of proof, whereas a jury would have decided on emotion.
However, Erlbaum denied the motion to dismiss the charges specifically related to the alleged intentional assault that took place within Monserrate’s apartment and allowed the assault charge for recklessness that took place when Monserrate pulled girlfriend Karla Giraldo away from her neighbor’s door and dragged her out of the building, which may have caused the bruising and skin tear to her forearm.
By legal definitions, recklessness is characterized by a substantial and unjustifiable risk of harm to others and a gross deviation from what a reasonable person would do.
After Erlbaum’s decision, the defense called their first witness Jackson Heights attorney Jesus Peña.
Peña, a member of the New York State bar for 22 years who practices a criminal law, hosted the Christmas party that Giraldo had attended earlier that evening. Peña testified that his firm had advertised in the newspaper, Resumen, where Giraldo had worked as a sales representative. He said he greeted her when she arrived around 9 p.m. and did not recall her being drunk.
While at the party of over 150 people, Peña testified he saw Giraldo dancing with different guys and talking to the disc jockey.
"She was gesticulating a lot and dancing in an out of control situation," said Peña a native of Cuba, who added that if his guests drink too much or act recklessly he will approach them and ask them to tone it down or leave for fear of lawsuits. "I put it [to her] either ‘stop drinking or leave the party because I’m not going to be responsible.’"
Peña said that though he never saw Giraldo drinking, when told her this sometime between 11:30 p.m. and midnight, she had just come from the bar with a drink and stumbled. He never saw Giraldo leave the party.
On cross-examination Assistant District Attorney Scott Kessler got Peña to testify about his connection to Monserrate in order to demonstrate some sort of bias. Turns out that in 2004, Peña he represented the family of the dead grocery store clerk 16-year-old Manuel Chametla who wanted Queens District Attorney Richard K. Brown to charge the retired police officer who claimed the death was accident. After Monserrate and members of the community came together to protest in front of the D.A.’s office. A month later, John Malik was charged with manslaughter and copped a plea bargain.
The defense has three witnesses lined up for Tuesday including Giraldo’s cousin, Jasmina Rojas, who escorted Giraldo to Monserrate’s apartment on December 19, 2008. However, Tacopina has turned in a motion to the judge that could affect whether or not more witness will be called.
Earlier in the day, a dizzying array of photographs and hospital surveillance tapes briefly confused Erlbaum during the seventh day the trial.
However, the one piece of footage from the Long Island Jewish (LIJ) Medical Center that showed the alleged victim, the senator’s girlfriend Karla Giraldo, run up to him before police officers escorted him out was not saved by the LIJ director of security.
“There were too many violations of HIPPA [Health Insurance Portability and Accountability Act] with too many patients in the treatment area,” said hospital security manager Patrick Ilnitzki, about direction he received from his supervisor in reference to the federal medical privacy laws.
After Tacopina asked questions about various entrances and distance to the emergency room from the parking spots on the ground of LIJ, Assistant District Attorney Scott Kessler rested his side of the case on Tuesday, October 6.
“I don’t understand why that testimony was important to have actually, it sort of helped us,” said Tacopina, who added that twice in this trial video evidence that would have supported their case was not saved.
Testimony on the seventh day of Monserrate’s trial followed Giraldo’s Wednesday, September 30 dramatic courtroom exit.
Giraldo fled the witness stand after Kessler showed her the surveillance video of the night Monserrate allegedly assaulted her, but before she did so, Giraldo told Judge Erlbaum that the video “made her ill.” Giraldo’s behavior capped off a day that started with Kessler’s unsuccessful petition to the judge to treat her as a hostile witness.
On Tuesday, September 29, a 19-year NYPD veteran who photographed Monserrate’s apartment that night testified. Among the items photographed were bloody towels, a torn white sleeveless T-shirt recovered from a garbage can, a bloody white bed sheet, a bloody green shirt recovered from the sink in the bathroom and a broken glass on the bed.
Monserrate’s downstairs neighbor testified on Monday, September 22 that she couldn’t sleep all night because of the verbal intercourse and “crazy energy” from upstairs. She also said Giraldo knocked on her door frantically three times and then she heard a scream. She did not call 9-1-1.
The prosecution has argued that an enraged Monserrate struck Giraldo in the face with a piece of glass while the defense claims it was a freak accident.