People v. Mahabub

QUEENS COUNTY
Criminal Practice

New York Law Journal

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Judge Elisa Koenderman

Prosecutors moved for forfeiture of Mahabub's constitutional right to confrontation so as to admit the complainant of his wife, Ismat, prior statements made to law enforcement against him at trial. A Sirois hearing was held, and the court ruled prosecutors failed to show by clear and convincing evidence that Mahabub "procured Ismat's unavailability" through misconduct, denying the motion. Police received a radio run of an assault in progress and arrived to observe Ismat with a bloody lip and blood on her cheek. Ismat stated she and Mahabub had a verbal altercation that escalated, and he smacked her. She filled out a domestic incident report, but later refused to testify and sought to drop any charges expressing concern Mahabub would be deported to Bangladesh if the case continued. Prosecutors argued Mahabub used coercive control over Ismat to procure her unavailability as a witness, alleging her recantation and refusal to testify coincided with numerous calls he allegedly made to Ismat in violation of an order of protection. The court ruled the circumstantial evidence did not satisfy prosecutors' burden to show Mahabub's misconduct caused Ismat's unavailability by utilizing any coercive control to manipulate her.

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