Guilty New York "Lawmaker" Avoids Jail

Monserrate Avoids Jail, But Still Faces Senate Action
The New York Law Journal by Vesselin Mitev - December 7, 2009

The criminal case against state Senator Hiram Monserrate came to an end Friday as the Queens Democrat avoided jail for unintentionally injuring his girlfriend during a fight in his apartment. But the freshman lawmaker's political future remained in doubt, as the judge presiding over his bench trial granted a special Senate committee investigating Mr. Monserrate's conduct access to grand jury testimony and other evidence not presented at trial. Daniel R. Alonso, the Senate committee's special counsel, told the court that the panel had a "fundamentally different" purpose and process than a criminal court—to determine whether one of its members was fit to serve, and needed the access to be able to do its job "fully and fairly." Queens Supreme Court Justice William M. Erlbaum sentenced Mr. Monserrate to three years probation and 250 hours of community service for assaulting his girlfriend, Karla Giraldo, after an argument last December. Mr. Monserrate could have received one year in jail. The judge declined to follow the prosecution's recommendation of 60 days' jail time, but ordered the senator to participate in a 52-week counseling program for batterers. He also declined, at least for the moment, to cancel an order that Mr. Monserrate and Ms. Giraldo stay away from each other frustrating their expressed desire to get married. Mr. Monserrate was acquitted in October of felony charges that he had intentionally sliced Ms. Giraldo's face with broken glass but was found guilty of misdemeanor assault for a "violent and very forceful dragging" of the woman after the incident. Surveillance video showed Mr. Monserrate dragging a bleeding Ms. Giraldo through his apartment lobby and away from a neighbor's door (NYLJ, Oct. 16). A felony verdict would have meant automatic expulsion from the Senate. Despite the judge's rejection of the intentional assault charge, however, several senators have continued to call on Mr. Monserrate to resign or to be removed from office if he refuses. Senate Democratic Leader John Sampson of Brooklyn has appointed a special committee composed of five Democrats and four Republicans chaired by Senator Eric Schneiderman, D-Manhattan, to consider whether the body has the legal authority to discipline Mr. Monserrate and, if so, what penalty would be appropriate. Before sentencing, Justice Erlbaum granted the senator access to Ms. Giraldo's grand jury testimony and "any exhibits ancillary" to the time between the injury and when she arrived at a hospital nearly 40 minutes later.

The prosecution had maintained that Ms. Giraldo told hospital staff the wound near her eye was intentionally inflicted but changed her story to claim that it was an accident after Mr. Monserrate's arrest (NYLJ, Sept. 22). The wound required 40 stitches to close. "We have reason to believe that…not every piece of information valuable to cross-examination got to see the light of day," David Lewis, one of two attorneys representing the committee, told the court. In asking the court to allow access to the grand jury testimony of other witnesses, Mr. Alonso cited the "serious inconsistencies" between Ms. Giraldo's trial and grand jury testimonies as well as the fact that "both sides were in some ways walking on eggshells." It would be "perfectly reasonable for the committee to explore" whether there were other inconsistencies, he said. "Everyone can see what's on the tape," said Mr. Alonso, a partner at Kaye Scholer, referencing the surveillance footage. The question remained, Mr. Alonso said, "Why was he doing it?" But Justice Erlbaum refused the request, saying that while he was sympathetic to the committee's mission. He said he aimed to protect the confidentiality of grand jury proceedings, pointing out that witnesses testified expecting privacy. Further, the judge said, the "state Senate did not have to stand trial in a felony case where one can go to state prison." Joseph Tacopina, one of Mr. Monserrate's attorneys, objected to the motion, stating that the trial record was fully developed. While agreeing that the evidence presented at trial compiled a "treasure trove" of a record, the judge nevertheless granted access to Ms. Giraldo's grand jury testimony and related exhibits.

'Curb Your Anger'

During the hearing, Ms. Giraldo, 30, and Mr. Monserrate, 42, told the court they loved each other and wanted to get married and asked Justice Erlbaum to remove the order of protection. After the judge asked whether Ms. Giraldo was "an autonomous person" or whether she "acted at the bidding of Mr. Monserrate," Ms. Giraldo, who speaks English but testified through a Spanish interpreter, answered that Mr. Monserrate "does not dominate me…he doesn't have any control over me." The judge then asked if Ms. Giraldo condoned Mr. Monserrate rifling through her purse and throwing out items he did not approve of. According to testimony at trial, their dispute started when Mr. Monserrate found another man's Patrolman's Benevolent Association card in his girlfriend's wallet and angrily threw it out. Ms. Giraldo replied that "if he doesn't like it, if it's going to create problems, then it's fine, he can throw it away." Mr. Monserrate told the court he was sorry for his actions and that he was "committed to providing [Ms. Giraldo] happiness." Justice Erlbaum asked if he could "curtail your jealousy" and whether Ms. Giraldo needed his permission to make decisions. "No, she does not need my permission—she is an independent person," the senator answered. Justice Erlbaum refused to lift the order of protection, although he left open the possibility that it could be lifted in the near future, upon a showing that Mr. Monserrate, a former Marine, had begun receiving treatment for his anger issues. Justice Erlbaum expressed his hope that Ms. Giraldo would "have the self-respect to stop acting like a slave" and urged Mr. Monserrate to "curb your anger." In a statement, Queens District Attorney Richard A. Brown said he was "somewhat disappointed" that no jail time was imposed as the sentence did not "adequately deter further acts of domestic violence by this defendant or others." Mr. Tacopina, of Manhattan's Tacopina Seigel & Turano, said he was "thrilled" with the sentence but said he planned to file a notice of appeal on the reckless misdemeanor count. The Senate committee is expected to wrap up its findings by the end of the year but no deadline has been set for a final report. Mr. Monserrate played a leading role in a leadership dispute that snarled the Senate for weeks, at first aligning himself with the Republicans and then returning to the Democrats. Even if he survives the Senate committee's probe, he will have a tough fight for reelection next year. Queens Democrats already have announced their support of another candidate. Vesselin Mitev can be reached at vmitev@alm.com.