People v. Kolko

37 Misc. 3d 499
CourtCriminal Court of the City of New York
DecidedJuly 30, 2012
StatusPublished

This text of 37 Misc. 3d 499 (People v. Kolko) is published on Counsel Stack Legal Research, covering Criminal Court of the City of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Kolko, 37 Misc. 3d 499 (N.Y. Super. Ct. 2012).

Opinion

[500]*500OPINION OF THE COURT

Michael Gerstein, J.

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 10 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) F., 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 (Penal Law § 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 F. Subsequently, defendant was arrested on the instant misdemeanor complaint, charging him with contempt for two separate occasions (Nov. 5, 2010 and Nov. 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 Sandoval1 and Molineux2 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 [501]*501obtaining 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 E, 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 E,” 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 F. and his father, passing F. “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 E, then 12 years old, for a period between 90 seconds and two minutes, with defendant’s arms purportedly folded in front of him. Both alleged violations were claimed to have occurred as F. and his father 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 F. and his family, and is located on the shortest and most direct route from F.’s house to his synagogue. F.’s [502]*502father testified that because he has difficulty walking, it was impractical for him to utilize a longer route that would not bring F. past defendant’s residence. F. 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 F.’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 F.’s father who was physically present walking with F. on both dates at issue and testified as a prosecution witness.

Following the father’s testimony, the People sought to have the court reconsider its Molineux/Sandoval rulings, arguing that the cross-examination of the father 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 F. If the jury had knowledge of these specifics, it would dispel the notion that F.’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 F, 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 pretrial 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 F.’s first grade Hebrew Studies class, showing defendant as the teacher and F. among the students.

The People presented the testimony of E; his father; the arresting officer; an investigator who testified as to a street map he created showing the respective residences of F. and defend[503]*503ant, as well as the synagogue towards which F.

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Bluebook (online)
37 Misc. 3d 499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-kolko-nycrimct-2012.