November 12, 2018

A Cup Of Joe | The Failure to Deny, Deny, Deny…

A Cup Of Joe | The Failure to Deny, Deny, Deny...

What Could Happen When You Say Nothing In Response to a Charge of Criminal Conduct

"Deny, deny, deny." That is Ronnie Ortiz-Magro’s relationship advice on Jersey Shore: Family Vacation. I am not an authority on how that advice works in romance, but in the criminal defense world, it could mean the difference between jail-time and freedom.

This week’s case is about Antone, who was arrested, charged, and prosecuted for domestic violence.  The victim was his girlfriend. At trial, there was evidence that Antone pushed her into a clothing rack, placed his hands around her neck and squeezed very hard, then pushed her onto her bed, jumped on top of her and hit her on the head. After the attack, she had redness on her face and neck, scratches close to her face, and swelling on the side of her face, which was very painful. Antone was convicted after a trial.

Here was the proof that sunk Antone: it was a tape of a telephone call made by Antone from Riker's Island to his mother and brother, that was recorded by Corrections. In the conversation Antone said, "Yeah I choked her," even though later in that conversation he said, "I didn't choke her, but I like grabbed her to slow her down."  Also in response to Antone’s mother saying that his girlfriend told his mother that he "tried to kill her" and "had her on the bed, you was choking her, you was hitting her," Antone merely responded "yeah, alright, whatever."

The court stated that Antone’s failure to contradict those statements by his mother justified using those statements as admissions. In April of last year, I wrote about a criminal case where a recorded phone call between an incarcerated defendant and his ex-girlfriend was used against him because he did not directly deny accusations of illegal conduct made by her, but instead responded evasively. Here is the article: http://pnlawyers-old.econstruolab.com/joseph-d-nohavicka-featured-in-the-new-york-law-journal/

The lesson: in a criminal case, if you don’t deny, you admit. It is of interest that in addition to the tape, the appeals court upheld the conviction based on the detailed testimony of the girlfriend; the photographs of her face and neck, the broken clothing rack; and, the testimony of the girlfriend's two friends and the arresting officer regarding the her appearance and comportment after the incident.

Antone was sentenced by the court.

Here is the case: http://www.courts.state.ny.us/reporter/3dseries/2018/2018_51479.htm

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