After a last ditch attempt to enter more documents into the record, the defense in People v. Monserrate rested their case on Thursday, October 8 without calling State Senator Hiram Monserrate to the stand. Closing arguments will begin on the following Tuesday, October 13.
“We spent last night reading every page of the transcript of this trial and in our opinion there is absolutely no question that reasonable doubt permeates this recored,” Defense attorney Joseph Tacopina told the news media. “As I said, we weren’t going to embrace any burdens. This is not a chess game.”
This past week has been a struggle for the defense whose witnesses added credibility to the prosecution – led by Assistant District Attorney Scott Kessler, Chief of the Domestic Violence unit in the Office of District Attorney Richard K. Brown – that Monserrate exerted power and control over the alleged victim, girlfriend Karla Giraldo.
As a result, Tacopina introduced on Tuesday, October 7, the Senator’s Long Island Jewish (LIJ) Medical Center medical records from 2003 to add credence to the Senator’s familiarity with and reason for choosing that hospital, located 14 miles away, compared to Elmhurst Hospital, located four minutes away, when he drove a bloody Giraldo for treatment that night. According to Tacopina, Monserrate just wanted to take Giraldo to the best hospital in Queens, irrespective of distance.
After the medical records were accepted into the record, Tacopina then tried to have Justice William Elrbaum – who has presided over the bench trial since Monserrate waived his right to a jury – to allow documents that could demonstrate LIJ’s ranking as the top medical facility in Queens and as a nationally ranked hospital.
Erlbaum acknowledged his reluctance to include allow the documents because no foundation had been laid as to the credibility of the publication found on the Internet. Erlbaum told Tacopina to discuss the matter with Kessler. Kessler shook his head and said "no."
In an uncharacteristic move for the quite confident Tacopina, he crossed over to the D.A.’s table in an attempt to cajole his colleague.
"C’mon Scott, will you talk to me?" Tacopina said. Tacopina then withdrew his request.
In the trial, the defense has stated that they felt the prosecution has not met their burden to prove beyond a reasonable doubt that Monserrate indeed committed the alleged crime of assault against his girlfriend, who suffered a cut to her face that required at least 20 stitches on above the left eyebrow and side.
Throughout, Monserrate has not said one word.
“It is very difficult, it is very difficult because he’s had to remain quiet while the trial has gone on,” said Tacopina. “He’s rejected everything that has happened that night and obviously he has a lot to say about it.”
READ WEDNESDAY’S COVERAGE BELOW
On Wednesday, the defense questioned Jasmina Abril de Rojas, the cousin of alleged victim and Monserrate girlfriend Karla Giraldo. Rojas walked Giraldo back to Monserrate’s apartment the night the alleged incident took place. During the morning session, a defense attorney asked Rojas questions about Giraldo’s drinking that night.
"I told my son that Karlita was happy," said Rojas using the word alegre in Spanish for ‘happy’ synonymous with tipsy. "By the time we were at the party she had more drinks and her conditions was such that we had to leave."
Rojas admitted that Giraldo’s behavior not only embarrassed her but that her cousin worried what Monserrate would think about her drinking. According to Rojas, Giraldo tried to act normal when she spoke to him on the drive home that night.
The editor of a local Queens paper, Resumen, Rojas said that she knew Monserrate from her professional work covering "the positive things he did in the community" but that she didn’t think they had a friendly relationship.
However, on cross examination, Assistant District Attorney Scott Kessler brought into evidence a picture of the witness with then-Councilmember Monserrate to establish her as a biased witness who favored the defendant.
"It doesn’t mean we are friends," she said in response.
Though the burden of proof lies with the State, the confidence the defense has felt the last few days of trial has begun to wane.
Twice on Wednesday, October 7, the defense sought to introduce last minute witnesses and evidence to refute testimony already on record.
In the morning, co-counsel Chad Seigel petitioned Judge Erlbaum to allow the testimony of Giraldo that the incident that led to her being cut on the face "was an accident," which she told two police officers and Rojas in an interview for Resumen, under the hearsay exception called "excited utterance."
Under excited utterance the statements made by Giraldo to someone could be admissible as evidence if the court found that Giraldo made the statements while under the stress of the startling event.
Judge Erlbaum denied the request because the prior consistent statement — Giraldo’s own in court statements and that of her aesthetician — were already in record.
The defense also tried to introduce the Senator’s Long Island Jewish Medical Center medical records from 2003 to add credence to the Senator’s familiarity with and reason for choosing that hospital, located 14 miles away, compared to Elmhurst Hospital, located four minutes away, when he drove a bloody Giraldo for treatment that night.
By press time on Wednesday, October 7, no decision on that matter had been made.
One day earlier, Erlbaum dismissed two of the six counts against Monserrate as the defense called its second witness in the case. Erlbaum threw out counts three and five – assault in the second degree and assault in the third degree, but left the charges for intent. The decision came after the prosecution rested its case on Tuesday and 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.
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 to remain.
During the afternoon session on Tuesday, the defense called its first witness –- Jackson Heights attorney Jesus Peña –- a member of the New York State bar for 22 years who practices criminal law. Peña hosted the Christmas party that Giraldo attended earlier that evening. He said he greeted her when she arrived around 9 p.m. and did not recall her being drunk at that time.
While at the party of more than 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 situations,” 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.’”
Last week, Giraldo’s dramatic courtroom exit made headlines when she fled the witness stand after Kessler showed her the surveillance video of the night Monserrate allegedly assaulted her. In addition, a 19-year NYPD veteran who photographed Monserrate’s apartment that night took pictures of 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.
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.
Rojas could be the defense’s last witness in the assault trial and closing statements could come as soon as early next week.
