Malandri & Rodriguez Stripper Trial - Criminal Court of New York City - Transcript Jan 22 2010

1
2
3
4
5
6
7
8
9
10
11
12
13 -----------------------------------------------------
14
15
16
17
18
19
20
21
22
23
24
25
273
CRIMINAL COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: PART JURY 1
--------------------------------x
THE PEOPLE OF THE STATE OF NEW YORK,
DOCKET NOS.
- against -
2008NY053104
2008NY053105
CASSANDRA MALANDRI AND
FALYNN RODRIGUEZ Defendants.
---------------- -------------------X
100 Centre Street
New York, New York 10013
January 22, 2010
BEFORE:
HONORABLE SHAWNDYA SIMPSON
A P PEA RAN C E S:
(Same as previously noted.)
(Whereupon, the following takes place
on the record in open court in the presence of
the Court, the district attorneys, the defense
counsel and the defendants:)
COURT OFFICER: Case on trial continued.
MR. REED: There are a couple of matters
it's on for recross, but there are a few matters before
we begin.
THE COURT: Okay.
MR. REED: The first being, yesterday, we
received some documents from lAB who was present at the
execution of the search warrant on July 17th or 18th,
274
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
of 2008. In that they gave us a -- just a couple of
documents that had some statements that the defendant
made at the time of their ~ r r e s t s . I don't believe
that they're Rosario. I just wanted to make the Court
aware that we handed them over this morning. We just
received them yesterday from lAB.
The second issue
MS. AL-SHABAZZ: Wait, I'm sorry. We're not
following.
THE COURT: Just give them a moment to look
over them.
(Whereupon defense counsel reviewed documents
given by the assistant district attorney.)
MS. AL-SHABAZZ: Are the People seeking to
introduce anything?
MR. REED: No, not at all.
MR. MOSER: Judge, I acknowledge receipt of
the document.
MR. STRAZZULLO: I acknowledge receipt.
MR. REED: The second issue, just I want to
bring it to the Court's attention, Ms. Shabazz,
yesterday, indicated to me that she would like to call
Det. Kong. I believe -- I'm not really sure when, but
Det. Kong has indicated to me that he's available
today, but he'll be on vacation all of next week. He
275
I
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
won't be available.
THE COURT: Well, who wants to recall Det.
Kong?
MR. REED: Ms. S h a b a z z ~
MS. AL-SHABAZZ: I may.
MR. REED: I just want to
MS. AL-SHABAZZ: I just want, you know, to
have him around just in case.
THE COURT: Okay.
MR. REED: He's going to be away. All next
week he won't be available.
THE COURT: But he's available today?
MR. REED: He's available today.
MS. AL-SHABAZZ: I'm hoping we'll get done
today.
THE COURT: So?
MR. REED: Okay. And the third issue is the
gentleman that was indicated to the People that was
Ms. Malandri's fiancee is in the audience, Your Honor.
And
THE COURT: Right, but we already dealt with
that yesterday.
MR. REED: Yeah, but if he intends to be,
present for the -- it's our position that he should not
be present for the testimony of other witnesses as he's
276
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
been served with a subpoena.
THE COURT: I can't exclude him for that
because I asked you to offer proof, and really you had
no valid argument, and what you said was collateral.
It's a collateral issue. You said that you would -
you said based upon your information, Ms. Malandri
claims to be a lesbian, and now you find out that she's
engaged to a man. And that is something that you would
call him for, and I wouldn't allow you to do that
anyway. It's completely collateral. It has nothing to
do with your case.
MR. REED: So is it Your Honor's ruling that
the subpoena that was given to this individual was not
served properly?
THE COURT: I don't think it was in good
---------------------_.----_.. _,------------
faith, and it was improper. That
basis. And even
him in.
So if there's no reason -- if you give me
another reason other than to say that she has a man in
her Ii
You have to tell me something else.
MR. REED: It's not just that she has a man
in her life. Is that she may take the stand and may
make the argument -
THE COURT: And that is collateral. It's
277
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
completely collateral.
MR. REED: Those are my issues, Your Honor.
THE COURT: Okay.
MR. STRAZZULLO: Let's proceed.
THE COURT: So he can definitely come in
after the undercover officer. I can't -- you have to
be really careful with that. It's automatic reversal.
You saw someone got kicked out on jury selection. You
provided me with that case on January 19th. I'm sure
if you are to win, you would not want the case to be
reversed on something as simple as that. It's not
worth it.
MR. REED: Yes, Your Honor.
THE COURT: Okay.
Do we have anything else?
MR. REED: No, Your Honor.
MR. MOSER: No, Your Honor.
MS. AL-SHABAZZ: No, Your Honor.
MR. STRAZZULLO: No, Your Honor.
THE COURT: Let's proceed.
COURT OFFICER: Witness entering.
(Witness entered the courtroom.)
COURT OFFICER: Retake the stand. The
witness is reminded that he's still under oath. Have a
seat.
278
- Proceedings -
1
THE WITNESS: Thank you.
2
Good morning.
3
THE COURT: Good morning.
4 People.
5 REDIRECT EXAMINATION
6 BY MR. REED:
7 Good morning. Q
8
Good morning. A
9 Q
When you received the two lap dances from the two
10 defendants why weren't you arose in anyway?
11 A
I try to do my assignment in a professional
12 manner.
I was very focused. I was also trying to remember
13 the fact that my partner was there also, and I was not only
14 a primary, but I was also acting as the ghost.
15 Q Can you speak up a little bit.
16 A Because I wasn't only a primary undercover there.
17 I was also a secondary undercover. So I also had to keep in
18 my mind that my partner was there also, and that while I was
19 in this dance area something could have been happening to
20 him, so that's why I stayed focused.
21 Q
Yesterday you testified - directing your
22 attention to the initial - the conversation that you had
23 with Ms. Malandri and Ms. Rodriguez about going into the
24 private room, who initiated that conversation?
25 A Ms. Malandri.
279
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Undercover 2948 - For People - Redirect (Mr. Reed)
Q
And what did she say?
MS. AL-SHABAZZ: Objection. This is not
redirect, We went over this already.
MR. REED: Well, we -
THE COURT: Overruled. Go ahead.
Q
What did she say?
A She said that we could get a private room, we
could all get naked and touch each other; that it was $300
for 15 minutes.
Q And was this before or after the conversation you
had with Ms. Malandri and Ms. Rodriguez about having sex for
$5,000?
A Before that.
Q
And was this
in this conversation was this the
first time that sex was mentioned by either you,
Ms. Malandri, or Ms. Rodriguez?
A Yes.
THE COURT: I'm sorry. What was your
question?
MS. AL-SHABAZZ: Objection. I didn't
understand the question.
Q My question is, at this initial conversation that
you had with Ms. Malandri and Ms. Rodriguez, was this the
first conversation that sexual conduct was mentioned?
A Yes.
280
1
MS. AL-SHABAZZ: I'm going to object because
2
I don't understand when he says, "initial
3
conversation," the first conversation. I'm not sure at
4 what point in time because there were a lot of
5 conversations.
6 Q When was the rst time that sexual contact was
7 mentioned on the night of June 20th, 2008?
8 A
When Defendant Malandri told me that we could get
9 a private room, and we could all get naked and touch each
10 other -
11
MS. AL-SHABAZZ: I'm going to object. The
12
question is too broad. Does he mean sexual conduct by
13
anyone because I remember that the officer testified he
14
spoke to John about fucking Ms. Malandri, and that
15
would have been prior to this conversation.
16
THE COURT: Okay. So right now werre just
17
focusing on the $300, for 15
18
MR. REED: No, Your Honor.
19 Q
My question is, that night between yourself and -
20
that night out of all of the conversations that you had with
21
Ms. Malandri and Ms. Rodriguez, when was the first time that
22 sexual conduct was mentioned?
23
A When Ms. Malandri stated to me that we could get a
24
private room with a bed, and we could all get naked and
25 touch each other.
281
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
MS. AL-SHABAZZ: No, no. Object, again,
because the prosecutor is using conclusory language
THE COURT: No, I agree.
MS. AL-SHABAZZ: Sexual conduct.
THE COURT: Sustained. Let me ask you a
question. What was said before Ms. Malandri allegedly
made that statement?
THE WITNESS: I asked her for another dance.
She said, "Why ~ o n ' t we get more private. We could get
a room, and we could all get naked and touch each
other." And then I asked her, "How much would that
cost?" And she said, "It was $300 for 15 minutes," and
we would get our own bed and nobody could see.
Q And before you asked her for the other dance in
this conversation had you mentioned sex to Ms. Malandri or
Ms. Rodriguez?
A No.
Q Okay. When Ms. Malandri
THE COURT: Did Ms. Malandri mention sex?
THE WITNESS: No. She said, "We'll all get
naked and touch each other."
THE COURT: But she didn't mention sex?
THE WITNESS: Sexual intercourse? No.
Q
Did you mention anything about getting naked with
Ms. Malandri and Ms. Rodriguez prior to asking her for a
282
1 dance during this conversation?
2 A No.
3
Q
When Ms. Malandri said, "We could all get naked
4 and touch each other," where was Ms. Rodriguez?
5 A
Standing to her left, directly in front of me.
6
Q
And can you describe for the Judge her body
7 language when Ms. Malandri said that?
8 MR. MOSER: Objection.
9
THE COURT: Overruled.
10
A The body language of Ms. Rodriguez or
11 Ms. Malandri?
12 Q
Ms. Rodriguez.
13 A
Ms. Rodriguez was standing to the left of
14 Ms. Malandri. She was looking at me. She was smiling. She
15 was looking at me up and down. She would touch my arm and
16 that was pretty much it.
17
Q After the conversation that you had with
18
Ms. Malandri and Ms. Rodriguez about having sex for $5,000,
19
did you see them again later on that night?
20 A Yes.
21
Q
And did you have a conversation with them?
22 A Yes.
23
Q
What, if anything, was described
24
MS. AL-SHABAZZ: Objection. This is direct
again, Your Honor. This is not redirect.
25
283
1
THE COURT: That's all right. Maybe I need
2
to hear it again.
3
Overruled.
4
MR. REED: This is -
5 THE COURT: Overruled. Answer the question.
6 A We spoke approximately three more times after that
7 agreement for the sex for $5,000.
8 THE COURT: Was there an agreement?
9
THE WITNESS: I'm sorry.
10
THE COURT: Back up with the agreement. Did
11
something happen? I'm going to strike that agreement.
12
You had conversation about $5,000?
13
THE WITNESS: Yes.
14
THE COURT: Okay.
15 A
Later on, after I walked away from the room, I
16 left them in the room, later on that evening, Ms. Malandri
17 and Ms. Rodriguez approached me, approximately three more
18 times, where Ms. Malandri asked me if I was sure that I
19 didn't want to go into the private room just to get a taste
20 of what I'was going to get tomorrow.
21 Q And where was Ms. Malandri - I'm sorry. Where
22 was Ms. Rodriguez at when you were approached by the two
23 defendants?
24
THE COURT: Wait. Back up.
MS. AL-SHABAZZ: Objection.
25
284
1
2
3
4
5
6
7
8
9
10
II
12
13
14
15
16
17
18
19
20
21
22
23
THE COURT: Tomorrow -- back up, back up.
Wait.
When you had the conversation about the
$5,000, and maybe my memory escapes me; I probably have
to have some read back, did you talk about a specific
date?
THE WITNESS: The next day.
THE COURT: Okay.
Go ahead.
A So they -- she came back to me the three times -
approximately three times
THE COURT: She who?
THE WITNESS: Both defendants, Ms. Malandri
and Ms. Rodriguez.
A Ms. Malandri told me if I was sure that I didn't
want to get a taste of what I was going to get tomorrow. If
I was sure if I didn't want to get the private room.
Q And was Ms. Rodriguez with Ms. Malandri all three
times?
A Yes.
Q
And was anybody else with them?
A No.
Q
And what room in the club did this conversation
take place?
In the main -- what I consider the main area.
25 A
24
285
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q
And do you remember what Ms. Rodriguez's body
language was during those conversations?
A The same as all the conversations; smiling,
touching, holding on -- at times she would hold onto
Ms. Malandri's hand.
Q And when you had the conversation with -- when
you
MR. REED: Strike that, Your Honor.
Q
When you had discussions with Ms. Malandri was she
alone ever?
A No.
Q Who was with her?
A Ms. Rodriguez.
Q Every time?
A Yes.
Q
Okay. And -- now, I'm going to direct your
well
MR. REED: Strike that, Your Honor.
Q
Did you have an opportunity to go on
Ms. Malandri's website?
A Yes.
Q ,Did you go on before or after you entered the Hot
Lap Dance Club on June 19th, of 2008?
A
I was there both times, before and after.
Q
Why you were on that website did you see any
286
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Undercover 2948 - For People - Redirect (Mr. Reed}
indication of a way to contact Ms. Malandri?
A Yes.
Q
And what was that indication?
A Via e-mail.
Q Okay.
MR. REED: One moment, Your Honor.
Your Honor, I have no further questions for
this witness.
MS. AL-SHABAZZ: May I inquire?
THE COURT: You may recross.
RECROSS EXAMINATION
BY MS. AL-SHABAZZ:
Q
Detective, when you left here yesterday did you
speak to your ghost in this case?
A
Yes, we did speak.
Q
Did you talk about this case?
A No.
Q
You didn't mention anything about your testimony?
A No.
Q Okay. So you said that when you were having the
conversation about going into the private room for $300 that
both, Ms. Malandri and Ms. Rodriguez, were smiling. You
said that here today?
A Yes.
Q
And you remember you were here testifying
287
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Undercover 2948 - For People-Recross (Ms. AI-Shabazz)
yesterday, right?
A Yes.
Q Okay. All right. So I'm going to ask you, on
People's direct, page 28 -- let's see where I'd like to
start, Line 8, page 28 -- actually, if I start at 27 because
there's a pronoun at the beginning of it, " S h e , ' ~ doesn't
really identify who is "She". So if I could go to page 27,
Line 22, and then work my way through. Actually, I start at
18 just for context and then I'll highlight the portions -
actually, I'm sorry. I withdraw all that.
This is with respect to Ms. Malandri. I don't
know if the People are going to object about that. If
they're paying attention. I guess not, so I'm going to
start at Line 8, because "She" is in the reference to
Ms. Malandri. "Question: Was she smiling when she said it
was $300? Answer: No. Question: Was about
Ms. Rodriguez -- I'm sorry. "Was Ms. Malandri smiling when
she said it's $300 for 15 minutes? Answer: No. Question:
What about Ms. Rodriguez? Answer: NO."
That's your testimony, recall giving answering
being asked those questions and giving those answers?
A Yes.
Q
Okay. But today you said that they were smiling,
right?
A
They were during the conversation, yes.
288
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
18
19
20
21
22
23
24
25
Q
Okay. But yesterday you said they were not?
A
When she told it was $300 there wasn't a smile
then.
Q There wasn't?
A
During the conversation, yes.
Okay. Now, you say Ms. Malandri approached you
Q
and said, "We tan go into a private room, and get naked and
touch," right?
A Correct.
Q
She didn't say, "I could touch your penis," right?
A She did not say that.
She didn't say, "You could touch my breast," did
Q
she?
A No, she did not.
Q
She didn't say, "You could touch my vagina,"
right?
A
Q
In fact, she never said anything about touching
any sexual part of your body or her body, correct?
A No.
Q
And all along this evening your testimony is that
Ms. Malandri touched you on your arms, right?
A Correct.
Q
Even during the dance she just touched your chest,
right?
289
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Undercover 2948 For People-Recross (Ms. AI-Shabazz)
A Correct.
Q She didn't touch your groin, right?
A She was sitting on my groin.
Q Okay. I'm asking you about hands. She didn't
touch your groin during the dance, right?
A Not that I recall, no.
Q
O k a ~ . So she touched your arms, right?
A Yes.
Q And touched your chest?
A Yes.
Q And her statement was,
"We can get naked and
touch," correct?
A Correct.
Q Nothing about sex, right?
A No.
Q
Okay. Now, you say that you went to the website
before and after, correct?
A Yes.
Q
You said that you saw on the website that you
could e-mail Ms. Malandri, correct?
A Yes.
Q
Did you attempt to do -- to send her an e-mail?
A No.
Q
No. So you have no knowledge whether or not that
e-mail website even worked, right; the e-mail on that
290
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
website even worked?
A
I do not know.
Q And you don't know if you sent an e-mail on that
website whether it really went to Ms. Malandri?
A No, I don't.
Q
You don't have any idea?
A No, I don't.
Q
And so you left that club without any ability to
contact Ms. Malandri, correct?
MR. REED: Objection. Objection, Your Honor.
A
I left the club after I made my agreement.
MS. AL-SHABAZZ: Withdrawn -- I mean move to
strike as non responsive.
Q You left the club -
THE COURT:
Sustained.
MS. AL-SHABAZZ: .
I'm sorry, Judge.
THE COURT: Sustained.
left the club without any
ability to contact
Q You
Ms. Malandri, correct?
A Yes.
Q
Now, you say you weren't aroused because you were
very focus, correct?
A Correct.
Q
The room that you were in, you couldn't see the
291
1
2
.3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ghost undercover, correct?
A
I was laying down in the bed.
MS. AL-SHABAZZ: Again, move to strike as non
responsive.
THE COURT: Sustained. Could you see the
ghost?
THE WITNESS: If he was in there, I'm would
have known. I'm laying on a bed looking at the
ceiling.
THE COURT: All right. So you didn't see
him?
THE WITNESS: I did not see him.
THE COURT: Okay.
You don't know where he was in the club, correct?
Q
A Correct.
Q
You don't know if his safety had been compromised
in another room, right?
A Correct.
Q But you were focused because you were concerned
about his safety, right?
A Correct.
And you were so focused that you weren't enjoying
Q
the dance, correct?
A Correct.
292
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Undercover 2948 - For People-Recross (Ms. Al-Shabazz)
Q Now you say later on, after you had the second
dance, that Ms. Malandri and Ms. Rodriguez approached you
three additional times, right?
A Yes.
Q
And, again, none of that is in your report,
correct?
A Correct.
MR. REED: Objection, Your Honor.
Q
None of that is in your report, correct?
A Correct.
Q In fact in your report you said, after you left
them, you got a dance with Sky, and then you left the
location; isn't that correct?
A
Not immediately after.
Q I'm asking you what your report says, detective?
The report that you prepared?
A If I could refresh my memory.
Q You don't remember what you wrote?
A
If I could refresh my memory.
Q
Okay. I'm asking you a question.
A I do not recall -
Q You don't recall?
A
The ending of the report.
Q
Okay. And that's because you have no independent
293
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Undercover 2948 -For People-Recross (Ms. AI-Shabazz)
recollection of these events, right?
A No, that's not it.
Q That's not true?
A No, that's not true.
Q
Okay. But you don't remember some of the details,
right?
A No. It's the time frame from where I had my dance
to the time I
ft, that may refresh my memory how long I
stood there afterwards.
Q So you don't remember all the details about this
case, right?
A Correct.
Q
And you had hundred or so other cases in between
when this case happened and yesterday, right?
A Yes.
MS. AL-SHABAZZ: Does the Court want us to
mark this to refresh his recollection?
THE COURT: As Defense C.
MS. AL-SHABAZZ: Defense C.
COURT OFFICER: Deemed marked Defendant's C
being shown to the witness.
(Whereupon, Defendant's Exhibit C was
published to the witness.)
MS. AL-SHABAZZ: When you finish with that,
if you'll look up so we'll all know that you're done.
294
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
THE COURT: Take your time, officer.
(Whereupon, Defendant's Exhibit C was
published to the witness.)
THE WITNESS: Okay.
MS. AL-SHABAZZ: Oh, I'm sorry. I should
look up.
Q
Does that refresh your recollection as to what
happened after the second dance with respect to -- you had
your dance with Sky and then you left?
A Yes.
Q Okay. Tell us, you wrote in your report then, in
fact, that after you had the dance with Ms. Malandri, the
second dance, you then had a dance with Sky and then you
left the location, correct?
A No, it actually states that I had my dance with
Sky. I had dances with other females that resulted in
negative results.
Q
And then you left the location?
A
And then approximately an hour after I had my last
dance with Ms. Malandri and Ms. Rodriguez, I left the
location.
Q
Your last dance? The 'second dance?
A Yes.
Q Okay. Then you left the location?
A
No, that's not what I just said.
295
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Q
Okay. Tell us again because I'm completely
confused now. Tell us, again.
A After my second dance with Ms. Rodriguez and
Ms. Malandri
Q Uh huh.
I stayed in the Hot Lap Dance for approximately an
A
hour.
Q Okay.
A
During that hour is when Ms. Malandri and
Ms. Rodriguez approached me -
Q Correct.
A
Another three additional times.
Q Uh huh.
After that -- towards the end of that hour is when
A
I said goodbye to the bartender, and my partner and I left
the location.
Q
Okay. You didn't put that in your report, did
you?
A
No, that's not in report.
Q
No, that's not in the report, okay.
And, in fact, in your report what you do say is
that after the second dance, Ms. Malandri gives you a kiss
on the cheek, you walk away, you go into another room. You
have dances with other people and then you leave. That's
25 what you put, right?
296
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Undercover 2948 - For People-Recross(Ms. AI-Shabazz)
A Yes.
You never put that they ever engage you ln
Q
conversation again that evening?
A
No, I did not.
Okay. Because that didn't happen, right? It
Q
didn't happen. That's why it's not in your report, right?
A No,
that wasn't part of my agreement.
Q Was cocaine part of your agreement?
A No, that was not part of my agreement.
Q But you put that
in your report, right?
A Yes.
Q Now,
we've already established that
you don't
remember a lot of what happened this evening, correct?
MR. REED: Objection, Your Honor. Objection,
Your Honor. I don't think we ever established that.
THE COURT: . Overruled.
Q You don't recall a lot of the details from this
evening, correct?
.A I wouldn't say a lot of the details, but the minor
details that I wouldn't put in the report, like where I
placed my drinks down, I don't recall that.
Q
I'm not asking you about minor details. You were
in this club for two-and-a-half hours, correct?
A Approximately.
Okay. And your report is four pages long and it's
Q
297
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
a summary, right?
A Correct.
Q
Okay. And it doesn't contain all of the details
that happened
MR. REED: Objection, Your Honor. We've been
down this road yesterday, today; this morning.
THE COURT: All right. Sustained.
Q And in fact, detective, you don't remember who
said what during these conversations, right?
MR. REED: Same objection, Your Honor. The
detective never said that.
MS. AL-SHABAZZ: It's a question. I'm
inquiring. I didn't say he said it. I'm asking him.
THE COURT: Okay, overruled.
Do you recall who said what?
THE WITNESS: Yes.
Q
Line for line in your report, you're absolutely
certain
THE COURT: Can I hear the question.
Q You're absolutely certain that it was Ms. Malandri
and not Ms. Rodriguez who said, "Let's go into a private
room"?
MR. REED: Same objection, Your Honor.
298
1
2
3
4
5
6
7
8
9
10
11
12
13
14
.jJ15
16
17
18
19
20
21
22
23
24
25
A Yes.
Q
You're certain about that?
MR. REED: Objection.
A Yes.
MS. AL-SHABAZZ: I have nothing further.
THE COURT: Okay.
RECROSS EXAMINATION
BY MR. MOSER:
Q
Detective, you've mentioned your report many
times, correct?
A Yes.
And do you deem your report -- at the end of your
Q
report, you state that you later informed your Sergeant,
Sgt. Koch, K-O-C-H, of a positive agreement for sexual
intercourse for the exchange of US currency; you recall
stating that, correct?
A Yes.
Q
Now, there's nowhere in your report that you state
that you informed your sergeant that there was any positive
agreement to go into a back room with either of these
defendants to have any illegal sexual conduct with either of
the defendants, correct? You never put that in your report,
correct?
MR. REED: I'm going to object. We've been
299
Undercover 2948 - For People - Recross(Mr. Moser)
1 down this road - this is a vulnerable objection, one, and
2 also we've been down this road yesterday and today. It's
3 outside the scope of my redirect as well.
4 THE COURT: It's not outside the scope
5 because you addressed that issue on your redirect.
6 MR. REED: Not about anything about reporting
7 anything to a sergeant.
S THE COURT: But to reporting the incident; am
9 I correct, that you did go into that incident about the
10 touching for $300 for -
II MR. REED: I did, but not about his report to
12 his supervisor.
13
THE COURT: Well, now they can ask about
14
that. You opened the door.
15
Q Am I correct, detective?
16
A I informed my supervisor that I did make a
17 positive agreement.
18 Q
For sexual intercourse
I'm sorry. Finish your
19 statement. A positive agreement
20 A I informed my supervisor, Sgt. Koch, that I
21 reached a positive agreement.
22 Q For sexual intercourse?
23 A
For sexual intercourse.
24 Q
For the exchange of US currency, correct?
25 A Correct.
300
Undercover 2948 - For People - Recross (Mr. Moser)
1 Q
And that's all you told your sergeant, correct?
2 A Yes.
3 Q
You never put in your report or told your sergeant
4 that you had a positive agreement to exchange $300 to have
5 sexual intercourse in a back room with either of these two
6 defendants, correct?
7 A Sexual intercourse?
8 Q Intercourse.
9 A In a back room?
10 Q Yes.
11 A
Okay. It was taking our clothes off and touching
12 each other. That's what it was.
13
Q Right, but that wasn't a positive agreement that
14
you informed your sergeant of, correct?
15
A He wasn't let known of that incident, but when I
16
called my sergeant, after I left the locati6n, I did tell
17
him that my agreement - that I made an agreement for sexual
18 intercourse in exchange for money.
19 Q And that was it?
20 A At that moment, yes.
21
Q And you didn't put anything about the $300
22
positive agreement in your report as you put an agreement
23 for sexual intercourse, correct?
24 A
I put the agreement on the report for $300.
25 Q
You never stated that you informed your sergeant
301
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Undercover 2948 - For People - Recross(Mr. Moser)
as in the words you told us -- withdrawn. At the end of
your report, after you state that you informed the Sgt. Koch
of the positive agreement for sexual intercourse for the
exchange for US currency, your report ends, correct?
A Correct.
Q Okay.
MR. MOSER: I have nothing further, Your
Honor.
Thank you.
MR. REED: Nothing further, Your Honor.
THE COURT: Okay.
MS. AL-SHABAZZ: I have nothing.
THE COURT:
Detective, you may step down.
THE COURT: Is there another witness?
MR. REED: Det. Rijos. There are two more,
.,... .....
Your Honor. It should be relatively short.
MS. AL-SHABAZZ: Can we inform the People
that the courtroom is now open?
THE COURT: The courtroom is now open.
COURT OFFICER: Please take the stand. Raise
your right hand.
Do you swear or affirm that the information
302
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Undercover 2948 - For People - Recross (Mr. Moser)
--------------_.-
you!re about to give in this courtroom is the truth,
the whole truth, and nothing but the truth.
THE WITNESS: Yes, I do.
COURT OFFICER; You may be seated.
DIRECT EXAMINATION
BY MS. ALPERT:
Good morning, Det. Rijos. I!d like to start by
Q
asking you to tell the Court your name, shield, and present
command?
A
Det. Rijosr-- Sbiel..d-.1LO-...-.3.D2.;_command is Manhattan.
South Vice.
And how many years have you been with the New York
Q
City Police Department?
A Approximately seven.
Q
And how long have you been at your present
command?
A Three-and-a-half.
Q And
MS. AL-SHABAZZ: I'm sorry. That years?
THE WITNESS: Yes, three-and-a-half years.
Q
And have you ever worked as an undercover -
A Yes.
Q In your present command?
A Yes.
Q
And how long did you work as an undercover?
303
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Det. Rijos - For People - Direct (Ms. Alpert)
A
Three years.
Q
Roughly from what date to what date; could you
please tell me?
A August 2006 to September 2009.
Q So turning your attention back to the Summer of
2008, were you indeed working as an undercover?
A Yes.
Q
And were you in this Vice Department?
A Yes.
Q
How many investigations did you perform while you
were in this Vice Department as an undercover?
MS. AL-SHABAZZ: Objection. Leading.
Q
Did you perform any investigations?
A Yes.
Q
How many did you perform?
A
I would say over three-four hundred.
Q
And how many of these, if any, were prostitution
investigations?
A Three-quarters of the cases were prostitution.
Q So can you give me a number?
A It would be at least 300.
Q
And were you an undercover on any of these
prostitution investigations?
25 A
On all of them.
304
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q And did you receive any special training to become
an undercover 0 cer?
A Yes.
Q
How long was this training?
A Approximately a month.
Q
Could you please briefly describe what that
training entailed?
A It was basically how to run an undercover
operation, what the field team would consist of, what are
the laws in order to conduct an undercover operation, and
just safety measures.
Q And were you also trained to work as part of a
undercover team?
A Yes.
Q
And are you familiar with the term "primary" and
"ghost"?
A Yes.
Q
Have you -- could you explain to me what a ghost
might be?
A The ghost is -- basically, when an undercover
makes an attempt at a location, the ghost is the person
looking out for the undercover, making sure that he's safe,
and the operation is being run correctly and properly.
Q
Are there times when an undercover might work as
both a primary and a ghost in an operation?
305
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A Yes.
Q And have you ever served in such a capacity as the
primary and the ghost -
A .Ye'S .
Q
In an operation?
A Yes.
Q And now turning your attention to the events that
completely relate to this trial, were you involved in an
investigation at the Hot Lap Dance Club?
A Yes.
MS. AL-SHABAZZ: Objection. When?
MS. ALPERT: I'm getting to that.
MS. AL-SHABAZZ: That's an objection. The
question is too broad.
Q Were you at any point involved in an
investigation
MS. AL-SHABAZZ: Same objection.
Q Specifically, in the Summer of 2008, were you
involved in an investigation of the Hot Lap Dance Club?
A Yes.
And could you please tell me where that location
Q
is, this Hot Lap Dance Club, what is the location of it?
A 338 West 38th Street.
306
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Oet. Rijos - For People - Direct (Ms. Alpert)
Q
I'm sorry. Could you repeat that?
A
338 West 38th Street.
Q Uh hum -
A
I might be off on the building number.
Q Do you remember if there was a specific floor of
the building?
A Yes, it was the fifth floor.
Q And do you know which -- in the County and in the
City of New York?
A Yes.
Q And you are -- and you said that it's on 38th
Street?
A Yes, is.
Q Okay.
And is this on the east side or west side
of 38th Street?
A It's on the west side.
Q In the evening hours of June 19th through the
early morning hours of June 20th, did you participate in an
undercover investigation at this location, the Hot Lap Dance
Club?
A Yes, I did.
Q And did there come a time when you encountered the
two defendants, Ms. Cassandra Malandri and Ms. Falynn
Rodriguez?
MS. AL-SHABAZZ: Objection. He hasn't
307
1 identified them as the defendants.
2 THE COURT: Sustained.
3 Q Did there come a time when you encountered
4 individuals named as Ms. Malandri and Ms. Rodriguez?
5 A Yes.
6 Q
Are they here in the court today?
7 A Yes.
8 Q
Could you please identify them by an item of
9 clothing?
10 A
Black sweater and a brown sweater.
11
MS. ALPERT: The People would like to -
12
13
THE COURT: Who is who?
14 Q
Could you please specify which one is which?
15 A
Ms. Malandri is the black sweater, and Rodriguez
16 is the brown sweater.
1 ~
MS. ALPERT: People would like to note
18 that -
19
THE COURT: Indicating the defendants for the
20 record.
21
MS. ALPERT: Thank you.
22 Q
Was Ms. Malandri known to you my another name?
23 A Yes.
24 Q What is that name?
25 A Alexia Moore.
308
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q And had you met either of these defendants prior
to the date in question, the ng of June 19th through
the early morning hours of June 20th?
A No.
Q
And so on June 20th, that early morning time
period, is that the first time you encountered either of
these two defendants?
A Yes.
Q And with regard to that day could you briefly walk
me through what happened that day? Just start -- I'd like
to start by - was there a time in which you engaged in a
tactical plan with your undercover team?
A Yes.
Q
And could you tell me when that occurred, roughly?
A Approximately 11:30, 11:30 p.m.
Q On which day was that?
MS. AL-SHABAZZ: Can we have the witness
nish the answer before she inquires the next
question.
THE COURT: Sustained. Just let him answer
the question fully.
A Approximately, 11:30, on June 19th.
Q And then what, if anything, happened after this
tactical meeting?
A We proceeded to go to the location.
309
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Det, Rijos - For People - Direct (Ms. Alpert)
By "we" could you please clarify?
Q
A
Myself, the other undercover involved, and the
field team.
And did there come a time that you approached the
Q
Hot Lap Dance Club
A Yes.
Q
On that day, in the morning in question?
A Yes,
Q
And approximately what
time did you approach the
Hot Lap Dance Club?
A 12;30 a.m.
Q
On which date?
A On June 20th.
Q
And could you te me what, if anything, you did
when you got to this Hot Lap Dance Club?
A We notified the field team that we were in the
vicinity of the location, and we awaited instructions for us
to proceed into the location.
Q
And did there come a time when you entered the
location?
A Yes.
Q
Could you please tell me what, if anything,
happened as you entered the location?
A
Well, we approached the front of the building and
we were greeted by one
the security guards. After that,
310
1 we continued into the elevator. We went up to the fifth
2 floor and we had saw another gentleman, who we had seen on
3 previous occasions, working the front door. He asked US for
4 our membership cards. We provided them. We were allowed
5 access into the location. We paid $50 per person and we
6 were given a wristband.
7 We then entered the main room of the location. We
8 had approached the bartender who was known to us from
9 previous attempts. We greeted him, spoke to him shortly,
10 and we mingled for approximately 20 to 30 minutes.
11 Q And could you just briefly describe to me the
12
lighting conditions of this main room that you're talking
13 about?
14
A The lights? It was kind of dimly lit. I mean
15
there were lights. It wasn't very bright.
16
Q All right. And was there any music playing?
17 A Yes.
18 Q
What were the audio conditions?
19 A Fairly loud. There was music playing.
20 Q
And were there any women in this area that you are
21 describing?
22 A Yes.
23 Q
Could you give me an approximation of how many
24 women?
25 A
I'd say 20 to 30 women.
311
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q
And could you tell me how, if
all, they were
dressed?
A
Basically, most to all of the women were dressed
in what you would consider bra and panties or lingerie, very
little clothes.
Q And how were you dressed this evening in question?
A
For my attempt for this day was slacks and a
button down shirt, with shoes.
And how, if at all, do you recall your undercover
Q
partner was dressed?
A Suit.
Q And did there come a time where you encountered
either of these two defendants that evening?
A Yes, I did see them.
Q Could you please describe to me what, if anything,
happened when you encountered them?
MS. AL-SHABAZZ: Objection. He said he saw
them. She said he encountered him. He said "Saw".
Q
Would you please describe to me
Q The rcumstances around which you saw them?
A
Approximately 20 to 30 minutes after being inside
of the location, my partner and I -- we both' saw the
defendants. He made eye contact with them, began to speak
to them shor y, and then they walked into one of the
312
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Det. Rijos - For People
Direct (Ms. Alpert)
private rooms.
Q
Now, did you observe him making eye contact with
them?
A Yes.
Q
And you observed him walking into one of the
private rooms with him?
A Yes.
Q Did you observe him with one of the defendants or
with both of the defendants; could you please explain that
further?
MS. AL-SHABAZZ: Objection to form.
Q
Who did you observe -
Q
Who did you observe the undercover with?
A
The undercover was with both of the defendants.
Q
And did you observe the undercover enter the room
with both of these defendants?
MR. MOSER: Objection.
MS. AL-SHABAZZ: Objection. Asked and
answered.
A Yes.
Q
And what, if anything, were you doing at this
time?
25 A
My function was to make sure that my partner was
313
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
safe and to know where his location was at all times.
Q
And could you please describe what, if anything,
you did wheh -- during this time?
A The first time I saw him speaking to both
defendants, they walked into the room. I wasn't able to go
into the room. That part - that section of, I guess, of
the layout, the way that area 'works, you can't walk in
unless you're getting a lap dance. So I saw my partner walk
in with the two defendants, I waited by the hallway area,
and waited for him to come back out.
Q
And then what, if anything, happened after that
point?
A
After he walked back out with the defendants, we
spoke briefly. We went back, we approached the bartender,
and my partner had spoken to the bartender and, basically,
told the bartender that he was interested in these women.
If he could, I guess, speak to them, and put in a good word.
Q Could you please clarify what you mean by
interested in them?
A Ah, basically
MS. AL-SHABAZZ: 11m going to object because
I'm not sure -- it's confusing. Who is interested in
what. I don't know who he's talking about at this
point.
314
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q Could you please repeat your answer in a way
that's more speci c?
MS. AL-SHABAZZ: Objection. There's no
question.
THE COURT: Overruled. Just repeat your
question.
MS. ALPERT: I'm sorry.
Q What, if anything, happened after you observed the
undercover partner of yours come out of the room?
A We walked back to the bartender -- well, what's
usually done, we would walk to the bartender
MS. AL-SHABAZZ: Objection as to what's
usually done.
THE COURT: What did you do on that day?
THE WITNESS: On that day, what we did was,
we walked to the bartender and asked him or inquired
about both defendants.
MS. AL-SHABAZZ: Objection as to "we".
THE COURT: Who were you with when you asked?
THE WITNESS: My partner.
Q And who was this that inquired?
A My partner.
Q
And what did your partner inquire about to you are
understanding?
MS. AL-SHABAZZ: Objection. He never
315
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
testified that he was privy to the conversation.
THE COURT: Did you overhear the
conversation?
THE WITNESS: All that I overheard?
THE COURT: Did you overhear the
conversation, officer?
THE WITNESS: Yes.
THE COURT: Okay.
Could you please tell me what your understanding
Q
of the conversation was to the parts that you overheard?
MS. AL-SHABAZZ: Objection. He didn't say
"parts".
MS. ALPERT: He just said that.
MS. AL-SHABAZZ: He said "parts"?
THE COURT: I guess he's going to tell us the
part he heard.
MS. AL-SHABAZZ: He didn't say "parts". She
said "parts". He didn't say "parts".
THE COURT: Okay. Well, I guess he's going
to tell us what he heard.
Q
Could you please tell me what you heard and what
your understanding was of that, if anything?
A Yes. My partner asked who the two defendants
were, and that's when he engaged in a conversation with the
bartender.
316
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Det. Rijos - For People - Direct(Ms. Alpert)
Q And did you overhear any parts of that
conversation -
A No.
Q
Or the totality of that conversation?
A No.
Q
No. And after that conversation what, if
anything, did you do?
A After that part I began to talk to another f e m ~ l e .
The bartender approached the two defendants. Shortly after,
they walked over to my partner. We were at a small section
of the area where it was like a hallway. I was sitting on a
dresser, and my partner was standing on a wall across from
me. The two defendants approached him and they started
speaking.
Q And are you describing this based upon your
observations?
A Yes.
Q
And what were you doing at this time, if anything?
A
I was across from my partner and the two
defendants. They were speaking, joking around. They were
very close -
MS. AL-SHABAZZ: Objection as to "they".
A
My partner and the two defendants were close to
each speaking.
I was approximately six feet away from them,
in the hallway.
Shortly after, they walked back into one of
317
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
the private rooms where you pay for a lap dance.
Q With regard to this area that you're describing ln
the hallway, could you please describe that in greater
detail?
A From the main entrance -- it connects the hallway
from the main entrance to the main room. So it's basically
a short hallway connecting you from the main entrance to the
main room.
Q And what, if anything, were you doing while you
stated you were standing -- or sitting on a table? Could
you please describe that?
A While sitting on the table, after I noticed that
my partner and the two defendants walked off to the private
room, I went into the room after them with my -- with the
female that I was speaking with.
Q
So you were speaking witn a female at this time?
A Yes.
Q
And what, if anything, happened at that point?
A
They had entered a room that had a bed in it which
was all the way to the rear. I had to stay in a room that
was not as far back. There were some sofas and -- so that's
where I was at. I stood there for approximately six
minutes.
Q And what were you doing in this room, if anything?
A
At that time I was actually getting a lap dance.
318
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q And were you aware -- were you able to see what
was happening with the --'with your undercover partner
during that time?
A
No, because there was a door between my area and
the area where the bed was located.
Q With regard to the area that your partner was
in,
had you ever been in that room before?
A Yes.
Q And were you familiar with the layout of that
room?
A Yes.
Q Were you familiar with the entries and exits of
that room?
A Yes.
Q
How many entries and exits were there to that room
to your recollection?
A To my recollection, for that specific room, there
was one entry and exit.
Q
Were you able to see that entry and exit from
where you were?
A Yes.
Q
During your lap dance; is that correct?
A
I was able to see the entry into the room, but
was not able to see actually into the room.
Q And so did you at any point observe the undercover
I
319
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
come out during the time that you are receiving your lap
dance which you described just now?
A I finished. Shortly after he walked out with the
two defendants.
Q So you observed him walk out after you were
finished; is that correct?
A Yes.
Q
And how long -- would you please clarify how long
you were there approximately?
A I would say approximately six minutes, six to
eight minutes.
Q Okay. And where did you go, if anywhere,
you received your lap dance?
A I walked back to the main room and waited for my
partner to walk out.
Q
And did there come a time when he came out?
A Yes.
Q
And what, if anything, happened or did you do at
that point?
A
He walked out with both defendants. They walked
back into the main area. He approached me. We spoke as we
usually do during these undercover operations and -
Q
Did you speak with him in the presence of the
other -- of the two defendants?
A No.
320
1 Q
And what, if anything, did - was your
2 understanding following your conversation with the
3 MS. AL-SHABAZZ; Objection.
4 MS. ALPERT: What is the basis?
5 MS. AL-SHABAZZ: You're not the Judge.
6
THE COURT: Wait. Wait. I can't even
7 hear -
8
MS. AL-SHABAZZ: You can't ask me what my
9
basis is. I would ask the Court to instruct
10
THE COURT: Wait. I didn't get the end of
11
the question either. What was the whole question? I'm
12 sorry.
13
MS. ALPERT: My question was what, if
14
anything, was his understanding pursuant to the
15
conversation with the other undercover?
16
MS. AL-SHABAZZ: I'm going to object. Was
17
his understanding about what?
18
MS. ALPERT: Pursuant to the conversation.
19
THE COURT: Okay. Overruled.
20
MS. AL-SHABAZZ: What conversation?
21
MS. ALPERT: That he just mentioned.
22
23
MS. AL-SHABAZZ: It's confusing.
24 Q
Sorry. I apologize.
25 A
Pursuant to the convers ion that I had with my
321
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Det. Rijos
For People - Direct (Ms. Alpert)
partner, after he walked out with both defendants,
basically, that there was a positive attempt or agreement
between my partner and the two defendants.
And what does this mean to you, "a positive
Q
attempt or agreement"?
A
Basically "a positive attempt or agreement," is
that there was a conversation, a certain type of sexual act
agreed
certain type of sexual act for money.
Q
And could you please clarify if he specified if
this was with both defendants or one of the defendants; what
was your understanding?
MS. AL-SHABAZZ: Objection. This is hearsay
at this point. I'm not sure why the People are asking
this witness. What's the exception to the hearsay rule
for why this comes in, this exception rule?
THE COURT: People?
MS. ALPERT: There'S no statement being made
here. It's his understanding based on the
conversation.
THE COURT: Are you saying the exception is
state of mind?
MS. ALPERT: Yes, Your Honor.
THE COURT: Oh, okay.
25
322
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A Can you repeat the question, please.
Q My question was what was your understanding as to
his positive agreement that you described, was that with
regard to a particular defendant?
A It was to both defendants.
Q Thank you. And I just like to circle back for a
moment. While you were in the hallway that you were
describing before, seated on the table, leaning against the
table as you described before, could you just briefly
describe the lighting conditions?
A
In that area it was dimly lit.
Q Dimly lit?
A Yes.
Q
And could you please describe the audio
conditions?
/
A The music was still playing, so it was fairly
fairly loud.
Q So were you able to hear any part of the
conversation between the undercover and the two defendants?
A No.
Q And at that time you mentioned that you were with
another female. What, if anything, were you doing with that
female while in the hallway?
A
We were speaking about an agreement to go get a
lap dance.
323
1
Q Were you able to hear the conversation with that
2 female?
3 A Yes.
4 Q And with regard to the lap dance room that you
5 were in, with her, what were the lighting conditions like in
6 that room?
7 A It was dimly lit also, dark.
8
Q
And what was the music - the audio conditions, I
9 apologize.
10 A Fairly loud.
11
Q
Did you engage in any conversation at that time
12 with that female?
13 A Yes.
14
Q Were you able to hear that
female?
15 A Yes.
16 Q And was she able to hear you as well - as far as
17 you could tell by the way the conversation was going?
18 A Yes.
19 Q With regard to - now, corning back to where you
20 were; I didn't mean to interrupt your story, while you were
21 back in the main room you spoke with the undercover? This
22 is after so you're a not confused.
23
MS. AL-SHABAZZ: Objection. I don't know
24
what we're doing.
THE COURT: sustained. Just repeat. Take
25
324
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
your time.
Q
My question is, once you were back in the main
room and speaking with the undercover, the other undercover
officer, the conversation that you previously described as
him stating that he had a positive conversation what, if
anything, happened after that point?
A
After we spoke, after the second lap dance, we
hung around in the location for awhile. The defendants did
approach my partner.
Q
Could you please clarify -- you just used the term
"we". Who are you describing as with the "we"?
A
Me and my partner. The defendants did approach
him several times after that, before we actually had left
the location for the night.
Q And you observed these encounters?
A Yes.
Q Did you hear anything?
A No.
Q How close were you to the undercover a n d / o ~ the
defendants during this time?
A
Approximately 10 feet away, maybe, I would say.
Q
And what were the audio conditions like?
A
The music was still playing so it was fairly loud.
Q And the lighting was -
A Yes, dim. 25
325
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q Dim. And while you were observing -- I'd like to
sort of point your attention to the -- some of these
conversations that you observed. While you are observing
the initial conversation that ,you described between the
defendants and the other undercover, could you please tell
me the distance that they were standing apart from one
another, specifying who was standing where?
A They -- when we were in the hallway area, that
was across from my partner and the two defendants, they were
actually very close to him. There was actually no space
between them. At that part of the night t h e ~ were actually
very close. They were all speaking, you can say, in each
other ears. They were joking around. They were very close
to each other.
Q Could you clarify when they are all close to each
other, does this mean -- what does that mean in terms of
body positioning?
A My partner was up against the wall and the two
females were on both sides of him.
Q And how many feet away from him, if any, were they
standing?
A One if that.
Q And with regard to the second time that you
observed them following your lap dance, how -- could you
please describe the body positioning and the distance that
I
326
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Det. Rijos
For People - Direct (Ms. Alpert)
all the parties that you observed were?
A When they walked out from the lap dance, he
basically my partner approached me and the two women
walked off.
Q And as they exited the room could you describe
when you saw -- when you observed them describe how far, if
at all, they were from one another?
A When I saw the defendants and my partner it was
I was standing in the main area, so I didn't observe them
walking out of the back room. I was standing in the main
area watching them walk out. You have one room with sofas
and then you have the back room that had the bed. I was by
the main room hallway. I saw them coming out, so I didn't
see them coming out of the room, but I saw them coming out
of that area. They were close to each other, smiling,
joking around, and that's when he approached me, and both
defendants went back to the main room.
Q
Would you mind clarifying what close to each other
means by distance?
A Less than a foot.
Q And you described that there came a time where you
observed the defendant approach him after that. Was this
one of the defendants, both of the could you
please clarify that for me?
A I observed both of the defendants approach my
327
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Oet. Rijos - For People - Oirect(Ms. Alpert)
partner several times after that throughout the night.
Q Did you at any point observe the -- either of the
defendants approach your partner solo?
MS. AL-SHABAZZ: Objection. What?
MS. ALPERT: I'm sorry. Alone.
THE COURT; Alone, solo.
Q Alone?
A It could have been possible, but I don't know if
they approached him one at a time or -- at the time that
saw them, it was both of them.
Q
And when you saw them approach those additional
times could you please describe, again, the distance that
they were standing and who was standing where?
A It was each -- basically, very close. It's
holding a conversation with someone it would be, I would
say, approximately a foot. Each time you walk up to the
person, speak to them, so it would be approximately a foot
away from them.
Q When you briefly described that hallway
conversation that you observed, you stated that they were
very close to each other, and did there come a time that you
ever observed any of the parties commit a physical contact
with one another?
A Yes.
Q
Could you describe such physical contact that you
I
328
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
observed?
A Basically hugging and, you know, they were very
close, so it was definitely -- they were hugging and joking
around, and had their arm on him.
Q And could you specify which incident, if any, you
observed that? You observed them several times. I just
want to be clear.
A On the second incident after speaking to the
bartender that -- both defendants walked over to my partner,
that's when I saw them get a little more comfortable with my
partner, and that's when they were joking around and a lot
closer.
Q And with regard to the time -- later in the
evening that you described observing them, did you observe
them come into physical contact with one another at all?
A
As I said, they were very close, but it was more
of a conversation -- it was a lot more friendly.
MS. AL-SHABAZ'Z: Objection.
A Basically -
A
The conversation was very close to each other.
Q
Did either of the defendants from your observation
look upset at the undercover -
25 MR. MOSER: Objection.
329
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q
Based on their facial expression?
MS. ALPERT: Oh, I'm sorry.
Based upon their facial expression what could
you tell, if anything?
THE WITNESS: No, they weren't upset.. They
were joking around. It was a very comfortable
atmosphere.
Q And did you observe the attire that these women
were wearing that evening, the two defendants, the clothing,
if anything?
A They were wearing clothing, very little.
THE COURT: What do you consider clothing?
Like what were they wearing, specifically?
THE WITNESS:
Bra, panties; lingerie.
THE COURT: Okay, so lingerie?
THE WITNESS: Basically.
MS. ALPERT: Oh, I'm sorry.
Q
And I'm just wondering, following these
conversations what, if anything, happened in terms of your
conduct with this operation?
A Could you repeat that?
MS. AL-SHABAZZ: Objection. I guess it's
confusing.
330
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
What, if anything, happened after you observed all
Q
these conversations?
A
After I observed
MS. AL-SHABAZZ: Still confusing. Objection.
Q
Did there come a time that you left the Hot Lap
Dance Club?
A Yes.
Could you please describe to me how -- I'm sorry.
Could you please tell me what you did upon leaving the Hot
Lap Dance, if anything?
A
After they walked out the room for the second time
and we
they approached him several times after that, we
basically mingled in the area and we left the location, went
back to the undercover vehicle and informed the sergeant and
the team, the field team, we were back in the vehicle and
the operation was over, and we were safe.
Q
And just to clarify, by "we," you mean?
A Me and my partner.
Q
And can you give me a time approximation of what
time this was that you finished the operation?
A
3:00 a.m. to 3:30, approximately.
Q
And did there come a time after that in which you
wrote any report regarding this operation?
A Yes.
Q
Did you at any point discuss your report that
Q
t
331
1
2
3
4
5
6
7
S
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
evening with the other undercover?
A Yes.
Q
Did you discuss either of the defendants in your
report?
A
In my report, no.
Q
And could you please explain to me why that is?
A For my report it's only what occurred with me.
Basically, if I spoke to a female, did I get an agreement.
It's everything that occurred with me. Everything that
occurred with my partner would be on his report.
Q So your report wouldn't contain every detail of
what happened that evening?
A No.
Q
Would it contain every detail of what you
observed?
A No.
Q
Would it even contain conversations that you had
with the undercover regarding his investigation?
A It wouldn't contain that either.
Q Why is that, that you don't do that?
A
Basically if I was to put every detail, the report
would be hundred pages. It's too much to remember. It's
not possible.
332
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
And with regard to recording this, the events of
Q
this evening in your report, did you record the events of
this evening in any other way besides in the report?
A No.
Q
Did you wear a recording device that evening?
A No.
Q Do you know if your partner was wearing a
recording device that evening?
A To my knowledge, no.
Q And could I ask you why you were not wearing a
recording device that evening?
A The recording device can only be used for certain
operations. An operation such as this one; where you're
getting touched or the shirt might be opened or moved or
someone is very close to you, you risk the change of the
operation being, I guess, of destroying the operation
because once the recording device is found, it'll just
they'll know something is wrong. So, basically, the
recording device is not used for every operation. It's not
feasible. It's not possible.
Q And
MS. ALPERT: I'm sorry. One moment, please.
Q
Are you familiar with a Kel device?
A Yes.
Q
What is a Kel device?
333
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
pasically a piece of equipment
A A Kel
that we use in order for the field team to hear us and make
sure that our safety -- everything is safe with us while
conducting an operation.
Q
And did you -- were you in possession of a Kel
device
were you using a Kel device that evening to your
recollection?
A
To my recollection, no.
Q
And why to your recollection why might you not
have been using one?
MS. AL-SHABAZZ: Objection. Form.
Substance
MS. AL-SHABAZZ: And has been asked and
answered.
Q To your recollection why is that?
A
We didn't use the Kel device because, once
again -
MS. AL-SHABAZZ: Once again, objection.
Asked and answered.
A
In the location where we were at, being that it's
very close and there is touching, there was no where,
basically, to put the Kel without it being discovered.
Q And along the stream of this line of
334
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
questioning -- Along these -- with regard to the Kel or the
recording devices did you at any point that evening have a
camera?
A No.
Q
Going back to the tactical meeting that you
discussed earlier, did they provide you with a camera at
that meeting?
A A camera to use for the operation?
Q Yes.
A No.
Q
Are you aware of whether the Vice Unit Team that
you are assigned to uses cameras on any of their assignments
that you have been involved in?
A Yes, they have.
Q
Are you aware whether they used a camera on this
particular day in question?
A No.
Q
And are you aware of any reason why that might be?
A
To use a camera it would be -- you wouldn't get
the audio on the camera, but I've used cameras before for
gambling or cases like that where you see money being
exchanged. For something like this, you're sitting,
basically, with a female or -- all you're seeing is people
335
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Det, Rijos - For People - Direct (Ms. Alpert)
conversing,
Q And -- so in your experience have you used cameras
in prostitution cases, in your undercover experience?
A
No,
Q
And just sort of - before concluding, I'd like to
cia fy a few more things. You mentioned a few times that
you observed your undercover partner in a conversation with
the defendants on several occasions; is that correct?
A Yes.
And just to clarify, did you overhear -- were you
Q
able to hear any part of these conversations?
A No.
Q
And you testified earlier that you had observed
later in the evening what appeared to you to be some joking
between the parties?
A Yes.
Q
Something you said that was friendly or familiar?
A Yes.
Q Could you please explain to me how you came to
that conclusion if you were unable to hear what was being
said?
A
By looking at my partner and the two defendants,
and when we first walked into the location, the
defendants weren't as comfortable as they were after the
bartender had spoken to them. There was a lot more smiling,
336
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Oet. Rijos - For People - Oirect(Ms. Alpert)
a lot -- they were closer to each other.
Q And what indicated to you that they were maybe
joking as you suggested?
A Smiling, you know, you could see that the person
is laughing, joking around. It was just -- it was obvious.
You could see that they were more comfortable.
Q And I just want to make sure that I got
everything.
MS. ALPERT: I think that I have no more
questions. Thank you.
MR. REED: Your Honor, before we do cross,
can I use the bathroom?
THE COURT: Sure.
(Whereupon there was a brief recess.)
(Back on the record.)
COURT OFFICER: Recalling the witness?
THE COURT: Yes, please.
COURT OFFICER:
Let the witness be reminded that he's still
under oath.
THE COURT: All right.
You ready to proceed?
MS. AL-SHABAZZ: Yes, Your Honor. May I
337
inquire?
2
1
THE COURT: Yes.
3 CROSS EXAMINATION
4BY MS. AL-SHABAZZ:
5 Q Good morning, detective.
6 A Good morning.
7 Q Is it detective?
8 A Yes.
9 Q My name is
Ikiesha AI-Shabazz. I represent
10 Ms. Malandri. I have few a few questions for you. If I ask
11 a question that's confusing, just let me know and I'll do my
12 best to rephrase it, okay?
13 A Okay.
14 Q
Now, you've been with the NYPD for seven years?
15 A Yes.
16 Q
And for three and a half of those years you were
17 an undercover officer, correct?
18 A Yes.
19 Q
And in that time, in your capacity as an
20 undercover officer, you worked with Undercover Officer 2948?
21 A Yes.
22 Q How long did you work with him for?
23 A We came into the same undercover class, training
24 In '06. We've worked on different operations together.
25 Q
Okay. So do you still work with him?
338
1
2
3
5
7
9
10
11
12
13
14
16
17
18
19
20
21
22
23
24
25
Oet. Rijos - For People - Cross (Ms. AI-Shabazz)
A Yes.
So for approximately four years, you've worked
Q
with Undercover 2948?
Would you say you, guys, are friends?
Do you hang out with him outside of work?
No? Ever been to his house?
No.
Okay. Has he ever been to yours?
No.
Okay. You hang out together to go for drinks at
Okay, but your friends?
Yes.
So you're telling me that you two have never
shared a drink?
THE COURT: Objection sustained.
Q
You've never gone out for drinks with Undercover
2948?
MS. ALPERT: Objection, Your Honor.
Relevance?
339
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Det. Rijos - For People
Cross(Ms. AI-Shabazz)
MS. AL-SHABAZZ: Judge, I'm trying to
establish that they are friends. They have a
relationship -
THE COURT: There are different types of
friends. We all have friends. Doesn't mean they've
been to our homes.
MS. AL-SHABAZZ: Okay, all right.
THE COURT: They're just friends.
Q
He's your friend at work?
A Yes.
Q
Okay. Now you were with him yesterday, correct?
THE COURT: We all have friends like that.
THE WITNESS; Yes.
Q You were with him yesterday?
A Yes.
Q Did you travel with him from the courthouse
yesterday?
A Yes.
Q And did you travel with him this morning?
A Yes.
Q You discuss the details of this case yesterday?
A No.
Q Did you discuss the details of this case this
morning with him?
A No.
340
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Det. Rijos - For People - Cross (Ms. AI-Shabazz)
Q
Did you discuss the details of this case prior to
yesterday with him?
A
The beginning of the week.
Q You talked about this case?
A Yes.
Q
How many operations have you been involved with
since this case happened on June 20th, of '08?
A
Approximately, about 100-150.
Q
100-150. Prostitution investigations, right?
A Yes.
Q
And when you were preparing for this case did you
review any of the reports by Undercover 2948?
A
I have read his report before.
Q So you read his DD5?
A Yes.
Q
Okay. And you talked to him about the details of
the case, right?
A Yes.
Q Because you don't remember the details of this
case, right?
A I do remember the details of the case.
Q
You remember every single detail?
A Not every single detail.
Q
So there's some details you don't recall?
A Yes.
341
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Q Okay. And when you talked to him about details,
did you talk to him about things you didn't recall?
A When we spoke about the case -
Q Yeah.
A It was basically what
occurred with him or where
we were going to meet up, or certain things that pertain to
the actual attempt.
Q
O k a y ~ And did he tell you certain details that
you had not recalled?
A
I was told certain things I didn't know.
Q
Oh, you were told -- you were given information by
Undercover 2948 about -- you were given information that you
did not already know?
A Yeah.
Q
Okay. Now, you testified that the Hot Lap Dance
Club was at 338 West 38th Street. That's not correct, is
it?
A
As I said, the building number could be off.
Q
Because you don't remember the details about this
case, right?
A
I remember the details. As I said, the building
number
I could be off with the building number.
Q
Detective, you don't remember something as basic
and fundamental as to where this occurred?
MS. ALPERT: Objection, Your Honor. This is
25
342
I
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Det. Rijos - For People - Cross(Ms. AI-Shabazz)
argumentative.
Do you know how to get there?
THE WITNESS: Yes.
THE COURT: Okay, and do you know the number
on the building, exactly; do you recall?
THE WITNESS: Yes. The number itself?
THE COURT: Yes.
THE WITNESS:
No, I'm not -
THE COURT:
But you know how to get there?
THE WITNESS:
Yes. I know the building,
know the floor; I know the layout.
Q Now, you said you attended a tact plan meeting,
correct?
A Yes.
Q You said that happened at 11:30, on June 19th,
2008, right?
A Approximately.
Q Okay. And there came a time when you tacted up,
right?
A Yes.
Q
You're familiar with that term, right?
A Yes.
Q
And that means that's when you're given your
25 assignment and your equipment, right?
I
343
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A Yes.
Q
A Yes.
Q All right, So you had a Kel device with you?
A
Yes. A Kel device is always -
Q
Always assi
A Always on the tact plan.
Q on the tact
right?
A Yes.
Q
Now, there came a time when you went to the
location where the Hot Lap Dance Club was, and you had to
wait for the supervisor to give you the green light, right?
A Yes.
Q
And you had to wait for the supervisor to give you
the green light so that you .could step to the location,
right?
A Yes.
And to "step to the location," is just really a
police jargon for, "Get out of your police vehicle and walk
to the location," right?
A Correct.
Q And you got that green light, right?
A Yes.
And then you went up to the Hot Lap Dance Club,
Q
344
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
and you entered the main room, right?
A Yes.
Q
And you said it was dimly lit, right?
A Yes.
Q
Would you call this room dimly lit?
A
To me this is bright.
Q This is a bright room, right? So the main room
wasn't lit like this, you would say, right?
A
The ghting was less.
Q
Less lighting than this?
A Yes.
Q So that's a no?
A Correct.
Q
And you said there were 20 to 3 women there,
right?
A 20 to 30.
Q I'm sorry. 20 to 30 women.
And you said you got
there around 1:00 a.m.?
A
Between 12:30 and 1:00.
Q
How long did you stay?
A
Approximately three hours, three and a half maybe.
Q
Three and a half. So you left around 4:00 a.m.?
A
No, I would say maybe 3:00, 3:30.
Q
Okay. So my math might be off, but
A
Two and a half to three.
345
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Oet. Rijos
For People - Cross (Ms. AI-Shabazz)
Q
Oh, okay. So you were there two and a half to
three hours. And you say you were working as a primary and
as a ghost, right?
A Yes.
Q
And as a ghost your responsibility is to make sure
that your partner is sa
at all times, right?
A Yes.
Q
Now, you say there came a time when your partner
entered into a private back room. This is the room where
there was a bed, right?
A Yes.
Q
And you said you could see the door, right?
A Yes.
Q
But you could not see what was going on inside
that room, could you?
A No.
Q Did you have any way to communicate with your
partner?
A No.
Q Did you have a -- you had no Kel device, right?
A The Kel device wouldn't be between me and him.
Q Okay. So you had no way of knowing whether he
was, in fact, sa
in that back room?
A No.
Q
No. But that's your j o b ~ isn't it?
346
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
MS. ALPERT: Objection, Your Honor. This is
argumentative again.
Q
That's your job, isn't it?
A Yes, it is.
Q
So you weren't doing your job as this point?
MS. ALPERT: Your Honor, this is
argumentative.
A
I was doing my job. During an undercover
operation 100% of the time you could not be in the same area
as your undercover. It's impossible.
Q How long was the primary undercover inside the
room, the back room, where the bed was?
A
The first or the second time?
Q
The first time.
A The first time, a few minutes.
Q A few minutes, two minutes, four minutes, five?
Could you be more specific?
A Maybe five minutes.
Q Five minutes?
A Approximately.
Q
Okay. And you say that he was in the back with
both of the defendants, right?
A Yes.
347
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q
Okay. And then you saw him emerge from that room?
A Yes.
Q
And they were having a conversation?
A Yes.
Q
And you were seated on a table
A
I wasn't seated at a table.
Q
At this point?
A
I wasn't seated at a table.
Q
Okay. Where were you when they came out of the
room?
A
I was in the main room.
Q
Okay. Were you sitting down at this point?
A
I was sitting down when they approached him the
second time.
Q
Okay, okay. After he came out of the room you all
went to the bar, right?
A Yes.
Q Okay. Did you buy a drink at that point?
A We were served a drink.
Q You were served a drink?
A Yes.
Q Was that the second drink?
A I don't recall which drink. It could have been
the second drink.
Okay. Because when you first got there the
rst
Q
348
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
place you went was to the bar, right?
A Every time.
Q
Every time you go straight to the bar and you buy
a drink, right?
A Yes.
Q What were you drinking, detective?
A Vodka and Red Bull.
Q Okay. So you had your first drink. Did you drink
that drink?
A No.
Q Did you drink any of it?
A Yes.
Q You sipped ?
A Yes.
Q How much did you drink?
A
Maybe two or three drinks
two or three sips.
Q Okay. So you had a few sips of the
rst drink,
and then after the -- after your partner came out of the
room, after the first dance, you went to the bar and you got
your second drink, right?
A Yes.
Q
Okay. Did you drink the second drink?
A
Second drink, I actually put down on the table and
my partner knocked it over.
Okay. And then sometime turning the course of
Q
349
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
that evening, those two and a half hours, you got a third
drink, right?
A Yes.
Q Did you drink that drink?
A
That one I left on a table inside the main room.
Q Did you sip it?
A That one, yes.
Q
You sipped that one as well?
A Yes.
Q
How much of it did you sip?
A
Maybe a sip or two when we first got it, put it
down on the table, and walked away.
Q
Okay. And then there came a time when you got a
fourth drink, right?
A
To my recollection I had three to four drinks the
entire night.
Q
Okay. So then there came a time where you had a
fourth drink?
A Yes.
Q Did you drink that drink?
A No.
Q Did you sip it?
A That one, the fourth drink, I took it with me to
the restroom.
Q
Okay. And what you do with it in there?
350
Det, Rijos - For People - Cross(Ms. AI-Shabazz)
1 A I disposed of it,
2 Q Okay. So you didn't sip it at all?
3 A The fourth drink, no,
4 Q Okay. So you sipped from the first and the third
5 drink?
6 A Yes.
7 Q And you said you drank two-thirds of it, of the
8 first one?
9 A No.
10 Q
I'm sorry. How much of the first one did you
11 drink?
12 A Maybe three sips.
13 Q
Okay. And how much of the third one did you
14 drink?
15 A
Maybe a sip or two.
16 Q
And you take the sips because you wanted to blend
17 in, right?
18 A Yes.
19
Q You're not taking the drinks because you want to
20
become intoxicated, right?
21
A No.
22
Q You're drinking because you don't want to look
23
suspicious, right?
24
A Correct.
25
Q
You don't want to stand out, right?
351
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
A Correct.
Q You want the people that are in this club to think
that you are a patron, right?
A Yes.
Q
So you have to play the role, right?
A Yes.
Q
Because, in fact, you are role playing, right?
A Yes.
Q
You're pretending to be somebody you're not,
right?
A Correct.
Q
Okay. So you have to drink the drinks?
A
I don't have to drink the drinks. I have to make
it seem as 11m drinking the drinks.
Q But you do you did? Your testimony is that you
did drink the drink, right, some of it, some of it?
A A few sips.
Q
Okay. Now, you say when you were buying the
second drink, your partner had a conversation with the
bartender, right?
A Yes.
Q Is that John?
A Yes.
Q
Okay. And you couldn't hear that conversation,
25 right?
352
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Oet. Rijos - For People - Cross(Ms. Al-Shabazz)
A Just the first part.
Q And you couldn't hear it because they were too far
away, or was it because the music was to loud, or why?
A
I was several feet away from him, the bar was
crowded, and the music was playing.
Q Okay. So it was a combination of everything that
was going on inside that -- and this is the main room,
ght?
A Yes.
Q So the music was loud, they were too far, so you
couldn't hear the conversation that your partner had with
John, right?
A Correct.
Q
How long did they talk for?
A My partner and John?
Q Yes.
A
A few minutes.
Q
A few minutes, okay. And then after that your
partner went back over to Ms. Malandri and Ms. Rodriguez?
A After that, me and my partner spoke, the
bartender, John, approached the defendants and, shortly
after, the defendants approached my partner.
Q Okay. Now, you said before John spoke to them,
they weren't quite friendly, right?
A They were friendly, but not as comfortable as they
353
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
were after John spoke to them.
Q Okay. You observed that based on their body
language, right?
A Yes.
Q
Okay. Maybe facial expressions; things like that?
A Yes.
Q Okay. So then after they spoke with John, your
partner then was in a conversation with them, right?
A Yes.
Q
And you couldn't hear that conversation?
A Correct.
Q
And this 1S the conversation where you say they
were laughing and joking, right?
A Yes.
Q And you say that they were speaking very close to
one another, right?
A Yes.
Q And, in fact, Ms. Malandri was touching -- or they
were touching each other, correct?
A Correct.
Q
Whispering 1n each other ears?
A
Not whispering, but speaking.
Q
But speaking to each other?
A Right.
Q
Did they have to do that based on your experience
354
1
2
3.
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Det. Rijos - For People - Cross(Ms. Al-Shabazz)
and observation because the music was loud?
A No.
Q Okay. Now the time -- this whole time you're
observing your partner in conversation with Ms. Malandri and
Ms. Rodriguez, right?
A Excuse me?
Q The entire time this conversation you observing
your partner, and Ms. Malandri, and Ms. Rodriguez in
conversation, right?
A Yes.
Q
And they're joking and laughing, right?
A Yes.
Q
And they're ,being flirtatious, Ms. Malandri and
Ms. Rodriguez? Would you characterize that behavior as
flirtatious?
A Correct.
Q
Okay. At any point while you were observing them
did you see the conversation get really serious, laughter
stop?
MS. ALPERT:
Objection, Your Honor.
THE COURT:
Overruled.
A
During the conversation there was a point where
the joking and laughing stopped, and they were conversating.
Q Okay. You didn't say that when -- on direct
examination, though, right?
355
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
2,5
A Right.
Q In fact what you said was, "They were laughing and
joking the whole time," right? That's what you said?
A Most of time they were laughing and joking.
Q How long did you observe them in conversation at
that point?
A
They were in conversation only a few minutes.
Q
Okay. And then after that they went and had a
second dance, correct?
A Yes.
Q
And you were not able to observe them when they
had that second dance with your partner, right?
A I walked into the area, but I wasn't able to
observe where the bed was at.
Q Okay. So you couldn't hear anything that was
going on between the two -- the three of them, right?
A No.
Q
, at some point had your own lap
dance, right?
A Yes.
Q
Okay. And was that in the same room?
A
It was in the same area, but the room were
separated.
Q
So you, again, could not see your partner, right?
A No.
356
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
22
23
24
25
Q
And, again, yqu didn't know if he was safe in that
room?
A
No, that was the closest I could get to my partner
without it being awkward.
Q
Okay. How long did your lap dance last?
A
Five minutes, six minutes, maybe.
Q
A lap dance usually last the length of a song,
right?
A Yes.
Q
Most songs are really three or four minutes,
right?
A Correct.
Q Okay. So when you say six minutes you are
embellishing, aren't you?
A
I had two songs.
Q
Okay. What about your partner? You don't know
how many songs he had, do you? '
A No, I don't.
Q Okay. So after you had your two songs -
A Yes.
Q You saw your partner again?
A I walked out. I walked out with the females I was
with, and he walked out shortly after.
Q Okay. How much shortly after?
A A few minutes after, I would say, he walked out of
357
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
the room with both defendants.
Q Okay. I need you to be more specific, detective.
When you say a few minutes, I'm not sure if that's your six
minutes or my three minutes?
A Maybe -- I would say maybe three to five minutes
after I walked out.
Q
And then you have a conversation with him, right?
A Yes.
Q
You said you had a conversation with him about
positive agreements, right?
A Yes.
Q
Okay. Tell us what that meant, what that means to
you?
A
Basically the positive agreement was -- when he
walks out of the room, he walked up to me, told me what
happened between himself, which is my partner and the
defendants, and basically what was used, the phrase used
was, "I got on".
Q Okay. He told you, "I got on"?
A Yes.
Q And you took that to mean what?
A
That's what we use to signify that we have a
posi tive agreement for "that specific person or those
specific people.
Q
He didn't specify "How he got on". He didn't
358
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
specify, right?
A No.
Q Okay.
And it's that, "I got on, II phrase is a kin
to an undercover saying - in narcotics saying, "I got
done," right?
A Yes.
MS. ALPERT: Objection, Your Honor.
MS. AL-SHABAZZ: I'm sorry. Did you rule,
Your Honor?
THE COURT: I sa.id overruled.
MS. AL-SHABAZZ: Oh, okay. All right.
Q
He never said Ms. Malandri or Ms. Rodriguez agreed
. to fuck him? He never told you that, right?
A Not at that specific moment.
Q Okay. Let's focus on this moment, and then we'll
talk about other moments.
A Okay.
Q At that moment he never said anything about any
particular sexual act, right?
A Just "I got on".
Q
He never said anything about any particular sexual
conduct, right?
A No.
Q
And he never told you any specifics about where
359
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
any acts would occur, right?
A Not at that moment.
Q
He never said anything about when any acts would
occur?
A Not at that moment.
Q
Okay. Now, you say that in your experience as an
undercover officer you've used cameras before, right?
A Yes.
Q You didn't really specify on direct what type of
camera you're talking about. Do you mean like a small video
camera?
A
A button camera.
Q
Like a button hole camera, right? And you have
those available to you, right?
A Yes.
Q
You could have used one of those, correct?
A Yes.
Q
Okay. But you didn't?
A
The supervisor in the field team decided not to
use
MS. AL-SHABAZZ: Okay, objection. Move to
strike. It's non responsive to my question.
Q You didn't use the button hole camera that you had
at your disposal, correct?
360
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A It wasn't available to me.
Q It wasn't available to you?
A
For that particular day, no.
Q
Okay. So you didn't use it because it's wasn't
available? It's not because this is a prostitution case,
right?
A
It wasn't available because we don't have it at
our office. It has to be requested. Secondly, for this
type of case, it would not be a good piece of device to use.
Q And you say that because there's no audio, right?
A On the button camera -- there are button cameras
that have no audio
-
Q
I'm sorry, detective. It's a yes or no question?
MS. ALPERT: Objection.
A Yes.
MS. ALPERT: Withdrawn.
Now, do you remember what Ms. Malandri was wearing
Q
when you saw her on June 20th?
A
The exact outfit she was wearing, no.
Q
You don't remember if she had on a negligee as
opposed to a bra and a thong?
A No.
Q
You remember what Ms. Rodriguez was wearing?
A No.
Q
You having difficulty remembering the details of
361
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Oet. Rijos - For People - Cross(Ms. AI-Shabazz)
this case, detective?
MS. ALPERT: Objective. That's
argumentative.
Q
Now, you said that you were having a lap dance,
correct? In fact you had two songs, correct?
A Yes.
Q And your lap dances lasted six minutes, right?
A Yes.
Q Approximately?
A Approximately.
Q Do you remember what the woman was wearing who
gave you a lap dance?
A
She was wearing a bra and panties.
Q
Okay. And when she gave you a lap dance you were
seated?
A Yes.
Q
At any point were you laying down?
A No.
Q
And did she straddle you when she gave you a lap
dance?
MS. ALPERT: I'm sorry, Your Honor. This is
irrelevant. Objection.
Q
Now, you say that there was a conversation at some
362
1
2
3
4
5
6
7
8
. 9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
point after the second dance. You say you observed Ms.
Malandri and Ms. Rodriguez approach your partner at some
point later that evening?
A Yes.
Q
How many times did you say you observed that?
A Two or three.
Q
Okay. And you couldn't hear what was said, right?
A No .
Q
Okay. And you've done these operations many,
many, times, right?
A Yes.
Q
And it's not uncommon for women after they have
given a man a dance, to come over and see if you want
another dance, right?
A Yes.
Q Okay. And when you saw them speaking to your
partner it was a pretty quick conversation would you say?
A Fairly quick.
Q Fairly quick.
Quick enough to say, "Would you
like another dance"?
A
A little longer than that. That wasn't the only
question.
Q How would you know? You couldn't hear the
conversation, ght?
A Correct.
363
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q
Thank you. Now, at some point you left the Hot
Lap Dance Club, right?
A Yes.
Q And you say you had a conversation with your
partner about the positive agreement?
A Yes.
Q
Okay. Did you ask him about his posi ve
agreement?
A After he walked out of the room -
Q
Uh huh.
A After he had stated that he had got on, we
continued to mingle. Then he had specified that he had got
on and that it was $5,000 positive agreement for sex at a
location that wasn't going to be inside the Hot Lap Dance,
and that was that conversation.
Q
Was that location suppose to be the Hilton Hotel?
A
There was a hotel, yes.
Q
Did he say specifically the Hilton Hotel?
A
He told me at a hotel.
Q
Okay. And he said -- so it's your understanding,
based on this conversation, that there was suppose to be an
agreement for sex, at a hotel, when?
A The agreement was made, the actual act was
supposed to happen, if I'm correct, the following day.
Q Okay. Do you know what time? Did he tell you
364
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Det. Rijos - For People - Cross(Ms. Al-Shabazz)
what time?
A No.
Q
Did he tell you he had a phone number for
either Ms. Malandri?
A
What I was told was that he was going to e-mail
her
Q Uh hum.
A The e-mails went straight to her phone and she
would contact him.
Q Uh hum. Now, when you were in the Hot Lap Dance
Club, you attempted to solicit women for sex, correct?
A Yes.
And you didn't have any luck with that, did you?
Q
A On that night, no.
11m not talking about any other night and, in
Q
fact, in your report you say you got negative results,
right?
A Correct.
MS. ALPERT: Objection -- withdrawn.
MS. AL-SHABAZZ: I have nothing further at
this time.
THE COURT: Counsel?
MR. MOSER: Thank you.
CROSS EXAMINATION
MR. MOSER:
365
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Det. Rijos - For People - Cross (Mr. Moser)
Q Detective, my name is Adam Moser, and I'm the
attorney for Ms. Rodriguez in this case. I am not going to
repeat the questions of my colleague, so I assure you this
is going to take less time. However, I just have some
questions for you.
Prior to testifying here today, did you observe
any video which was taken of this club?
A Yes.
Q
And you reviewed that video to help prepare for
your testimony, correct?
A Yes.
Q
And who did you review this video with?
A
The DA's office.
Q Well, that's where you reviewed the video.
You
saw it in the DA's office, correct?
A Yes.
Q NOw, were you with yourself or were you with your
undercover partner when you reviewed the video?
A I reviewed the video more than once. I reviewed
it by myself and I reviewed it with my partner.
Q When did you review it with your partner?
A The beginning of this week.
Q And you reviewed it with your partner in the DA's
office, correct?
A Yes.
366
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Det. Rijos - For People - Cross(Mr. Moser)
Q And you reviewed this with your partner -- I'm
sorry. When you reviewed it with your partner, you were
speaking with one another, correct?
A Yes.
Q And you were speaking with one another as to the
events that took place during the evening of June 20th,
correct?
A No, we weren't speaking of the events. We were
just reviewing the video.
Q
Well, when you were reviewing it, you were talking
to one another, correct?
A Correct.
Q
You weren't talking about the Jet Game coming up?
You were talking about this case, correct?
A Yeah.
Q And you were speaking about this case to prepare
yourself for your direct testimony and your cross
examination, correct?
A Yes.
Q
And you needed to review the video to help you
refresh your recollection, correct?
A Of course.
Q
And just as you needed to review all the paperwork
in this case or whatever paperwork you reviewed to also help
refresh your recollection, correct?
367
1
2
3
4
5
6
7
8
9
10
II
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A Yes.
Q
And you needto refresh your recollection because,
as you stated, you've been on 100 to 150 cases since this
case, correct?
A Yes.
Q
Now, you stated previously that at one point the
bartender whose name is what?
A John.
Q John had a conversation with your undercover,
correct?
A Yes.
Q And then you stated John walked over to both of
the defendants at that time?
A
John spoke to the defendants, yes.
Q Both?
A Yes.
Q
And for how long did he speak to both defendants?
A Briefly.
Q And could you tell us in seconds what you mean by
briefly?
A A few minutes.
Q I'm sorry.
A A few minutes, three minutes, four minutes. It
was brief. Three minutes, if that.
Q Okay. And after he spoke to not just one of the
368
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Det. Rijos - For People -Cross(Mr. Moser}
defendants, but both the defendants who were together, then
the defendants went where?
A
Shortly after they walked over and approached my
partner.
Q Okay. Now, when John was speaking with the
defendants -- withdrawn. Now, when the defendants walked
over to your partner, the undercover, there was still this
joking around and speaking, correct?
A Yes.
Q
And on subsequent dates -- on subsequent times
during this evening, there was also conversations between
both defendants and your undercover partner, correct?
A Yes.
Q And you stated also there was laughing and joking
between all three of the participants in the conversation,
correct?
A Yes.
Q Falynn was laughing and joking, correct?
A Yes.
Q Cassandra was -- she was joking and laughing,
correct?
A Yes.
Q And so was your partner, correct?
A Yes.
Q But you, of course, never walked up to the three
369
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Oet. Rijos - For People - Cross (Mr. Moser)
of them so you could actually hear the conversation that
took place?
A No, I couldn't hear it.
Q
And at no point during this evening did you hear
any of the conversations, the words, which took place
between your undercover and the two defendants, correct?
A Correct.
Q
Your partner when he spoke to you as to ~ - when
you state that, "I got on," lS what he said to you, correct?
A Yes.
He never told you that he had a way to contact
Q
Ms. Rodriguez after this evening ended, did he?
A
What I was told was that he would contact
Ms. Malandri, and that's how they would both get together.
He would contact, I guess, Rodriguez through Malandri.
Q
He never told you -- just if you could listen to
my question. He never told you that he had a way to
directly contact Ms. Rodriguez -
A No.
Q
Correct?
A Correct.
Q
He didn't have a phone number or an e-mail address
that he stated that he had for Ms. Rodriguez, correct?
A Correct.
Q
And, in fact, Ms. Rodriguez is not on any website
370
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
from this club or any other website that you know of,
correct?
A
I have not seen Ms. Rodriguez on a website.
Q
Have you looked at the website?
A Yes.
MR. MOSER: Judge, I have nothing further.
Thank you.
MR. REED: One moment, Judge. I have nothing
further.
THE CLERK: Come to order. Recalling case on
trial.
MS. AL-SHABAZZ: Judge, may we approach?
THE COURT: Sure.
(Whereupon, there is a discussion
held off the record at the bench among the
Court, defense counsel and the assistant
district attorneys.)
COURT OFFICER: People?
MS. ALPERT: Undercover Rijos again, please.
Detective, you can take a seat. The witness
is reminded that he's still under oath.
24 REDIRECT EXAMINATION
25 BY MS. ALPERT:
371
Det. Rijos - For People - Redirect (Ms. Alpert)
1 Q
Good afternoon, again. Detective, I'd just like
2 to ask you a few more questions on redirect.
3 The first question is, is everything that you
4 testified to based on your actual memory and observation?
5 MS. AL-SHABAZZ: Objection.
6 THE COURT: I'm sorry. Repeat that question.
7 Q My question to you, detective, is I'd like to know
8 if everything that you testified to today is based upon your'
/ 9 actual memory and observation?
10 THE COURT: To the best of your recollection?
11 Q
To the best of your recollection?
12 A Yes.
13 Q I have another question for you. You testified to
14 the facts that you did not observe your - the other
15 undercover hundred percent of the time that you were in
16 engaged in this operation. Could you please explain to us
17 why that is -
18 A When conducting -
19 Q You were not able to observe him?
20 A When conducting an undercover operation, there's
21 no possible way for you to have contact all the time with
22 the undercover. Whether it's in a prostitution ,case, where
23 you make agreement for sexual acts, or it's a drug case.
24 You can stay as close as possible without being noticed.
25 That's the job of the ghost but, at all times, it's
372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Det. Rijos
For People - Redirect (Ms. Alpert)
impossible to always have an eye on him.
Q And you also testified that you did not at any
point walk up to the two defendants, and the undercover while
they were engaged in conversation, although you testified
that you could not hear from where you were. Could you
please explain to us why that was the case, you did not walk
up to them?
Q
If you were - you testified that you were unable
to hear the conversations between the undercover and the two
defendants; is that correct?
A Yes.
Q Were you able to physically enter that
conversation?
MS. AL-SHABAZZ: Objection. I don't know
what that means.
MR. REED: One moment. Can I have a moment,.
Your Honor?
THE COURT: Yes.
Why did you not get involved in the conversations
Q
that you were observing, that you were unable to hear about,
as you testified?
MS. AL-SHABAZZ: Objection. Form.
25
I
373
1
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A
At the point where he was speaking with the two
defendants and I was sitting across the hallway from him,
was speaking to a female and I didn't want to interrupt in
their conversation because at that point I knew that he was
trying to go for another lap dance.
And with regard to the conversations later in the
Q
evening, that you observed, you testified that you were
unable to hear those conversations; is that correct?
A Correct.
Q And why did you not engage in those conversations?
A Basically I already knew, from what he had told
me, that there was a positive agreement, so I would stand
away which is something that's always done. I would stand
away and not get involved in the conversation because there
was already an agreement. So I would try to see if I could
make an agreement with someone else. So I wouldn't
interrupt in the conversation.
Q And you testified that at some point -- when Ms.
AI-Shabazz aSKed you a question, you testified that he told
you that he got on. Why in your understanding might he have
told you that?
MS. AL-SHABAZZ: Objection. I'm sorry,
Judge. Objection.
Q
Have you -- you testified that you had a
374
Oet. Rijos - For People - Redirect (Ms. Alpert)
1 conversation in which the undercover stated that he got on;
2 is that correct?
3 A Yes.
4 Q
Have you ever used such terminology in an
5
undercover investigation yourself?
6 A Yes.
7 Q
Why might you have used that in the past?
8
9
THE COURT: What do you know it to mean,
10
of cer?
11
THE WITNESS: When I say it or when I'm
12
working with another police officer -
13
THE COURT: Yes.
14
THE WITNESS: And I'm the ghost? When we use
15 the phrase, "I got on," it's basically there's a
16 positive agreement. Whether it's for sex, drugs,
17 gambling; whatever the case is, it means there's a
18 positive agreement.
19 Q And why would you want the other undercover to
20 know that if you were using that term?
21 A I would want my partner who I'm working with to
22 know. In a case like this if there's a positive agreement
23 already made with two individuals, I wouldn't try to make
24 another agreement with those individuals. I would try to
25 make an agreement with someone else.
375
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Det. Rijos - For People - Redirect{Ms. Alpert)
Q
And Ms. AI-Shabazz inquired about whether you had
had anything to drink that night, and you testified that you
had had maybe three or four drinks at some point in your
hand; is that correct?
A Served, yes.
Q
And you testified that you sipped these drinks; is
that correct?
A Yes.
Q Were you intoxicated at any point?
A No.
Q Have you ever been intoxicated in your life?
A Yes.
Q
And so you -- based on that experience you can
tell when you're intoxicated; is that correct?
A Yes.
Q
And have you at any point been intoxicated during
an undercover investigation?
A No.
Q And why is that?
THE COURT: Overruled. You can answer it?
A
During an undercover operation I've never been
intoxicated for the safety of myself and the people that I'm
working with.
Q
And you also testified with regard to a camera. I
376
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
believe they called it a "button hole camera"?
MS. AL-SHABAZZ: Objection. I didn't.
Q
You testified to a camera -
THE COURT: Sustained. Go ahead.
Q
You testified to a camera and one of the defense
counsel inquired about whether one was available to you; is
that correct?
A Yes.
Q
And if such camera had been available to you would
you had wanted to use it?
A No.
Q
Why is that?
A
As I said before, in an operation of this sort
where there's close contact and there's women on top of you
and there a lot of touching between you and another
individual, you wouldn't want to wear anything that would
expose you to being an undercover or a police officer.
Q I just have one last question for you. Do you
recall when -- you recall ever speaking to myself or any of
the other assistant district attorneys prior to this case?
A No. Oh-
Q During -- prior to today?
A Oh, yes.
Q And do you recall any conversations that we
that you had up in the district attorney's office with
377
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
regard to testifying in this case?
A Yes.
Q What, if anything, did I tell you about testifying
in this case?
MS. AL-SHABAZZ: Objection. Hearsay.
Hearsay.
Q Did I tell you that your job was to tell the
truth?
MS. AL-SHABAZZ: I'm sorry, Judge. Did you
rule?
THE COURT: Overruled. Go ahead.
Q Did I tell you at any point, to your recollection,
that your job while testifying is to tell the truth?
A Yes.
MS. ALPERT: I have no more questions. Thank
you.
RECROSS EXAMINATION
BY MS. AL-SHABAZZ:
Q You needed the assistant district attorney to tell
you to tell the truth, detective?
A No.
Q You didn't need her to tell you that, right? You
took an oath to tell the truth, right?
A Correct.
Q When you became a police officer. You didn't need
25
378
Oet. Rijos - For People - Recross (Ms. AI-Shabazz)
1 her to tell you to tell truth, right?
2 A No.
3 Q Now, when you were preparing for this case you
4 spoke to this assistant district attorney, Ms. Alpert?
5 A Yes.
6 Q And you spoke to Mr. Reed?
7 A Yes.
8 Q And they told you what questions they were going
9 to ask you today?
10 A Yes.
11 Q And they told you what questions I might ask you
12 today, right?
13 A Yes.
14 Q And the undercover - the other undercover was
15 present at that time?
16 A No.
17 Q Okay. So now let me ask you a couple of other
18 questions. You said you wouldn't use the button hole
19 camera, right?
20 A Correct.
21 Q
There are other types of audio devices, right? In
22 fact, you could have a pen that's an audio device, right?
23 A I haven't seen one.
24 Q You haven't seen any type of spy wear where
25 there's audio, where you can record audio using something
379
Oet. Rijos - For People - Recross(Ms. AI-Shabazz)
1 other than the Kel?
2 A
I have seen other devices.
3 Q
Tell us what some of them are?
4 A
The only other recording device that we have in
5 our office to be utilized is an actual recording device
6 which is approximately this big.
7 Q
Oh, what does it look like? Does it look like a
8 pen?
9
MS. ALPERT: Your Honor, objection. This is
10
a compromise to the safety of undercover
11
investigations. Irrelevant too.
12
MS. AL-SHABAZZ: I think I'm incline to have
13
a right to put on a defense.
14
THE COURT: Overruled. Just describe the
15
device that you -
16
THE WITNESS: It's basically -
17
THE COURT: Is it like a small tape recorder?
18
THE WITNESS: A tape recorder you could
19 see buy in the street, a small recording device.
20
Q Okay. Now, you said that you're aware that there
21 are other devices, correct?
22 A Yes.
23 Q That record, right?
24 A Yes.
25 Q What are some of these other devices?
380
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Det. Rijos - For People - Recross (Ms. AI-Shabazz}
THE COURT: Objection sustained. Are you
talking about the device when used in his capacity as
an undercover officer -
MS. AL-SHABAZZ: That he can wear.
THE COURT: Or in general.
MS. AL-SHABAZZ: In general.
THE COURT: sustained.
Q If he -- well. my next question would be, would he
ever have access to use those during his investigation?
THE COURT: You can answer that.
A Whatever devices we have available you would have
to request them, but they can be used.
Q Okay. So you have to request these other types of
audio devices so they can be used, right?
A Yes.
Q Okay.
MS. AL-SHABAZZ: Now, Judge, you sustained
the objection to the types of devices.
I would ask if
I would be permitted to reask that question.
THE COURT: Now you can. Now you can.
MS. AL-SHABAZZ: Okay.
So what other types of devices are available that
Q
you can request?
MS. ALPERT: Your Honor, I'd like to object.
381
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
I think this is outside the scope. She's talking about
video cameras to start all of this.
Q That means you can answer.
A I know.
THE WITNESS: I have one question. The
devices that 11m describing here are devices we use
every day for operations. So if I'm bringing this
information out today, that means everyone will know
the type of devices we use
MS. AL-SHABAZZ: Okay.
THE WITNESS: Which puts myself as well as my
other 0
cers in danger.
THE COURT: Okay, objection sustained.
MS. AL-SHABAZZ: I would ask if the Court
would allow us to have a sidebar with the witness so
that the Court can be aware that there are other audio
devices available to them that they chose not to use.
THE COURT: You can ask that question, but he
doesn't have to tell specifics.
MS. AL-SHABAZZ: Okay. Fair enough. And
just so I make sure that I ask the question, I think he
answered it already.
Q There are other audio devices that record, that
are
available, to -- and/or at your disposal?
382
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A Yes.
Q Okay. Now, you testified -- Ms. Alpert asked you
if you were testifying based on your memory and observation
and you said, "Yes," right?
A Yes.
Q
You recall when I asked you a question on cross
examination were there some details that you didn't know
that the other undercover told you about. You said, "Yes,"
right?
A
Can you repeat that?
Q You remember when I was here before -
MS. ALPERT: Objection. The question is not
proper.
MS. AL-SHABAZZ: I didn't hear her objection.
MS. ALPERT: Form -- improper form.
THE COURT: She's repeating herself.
Overruled.
Q You remember when I was here questioning you
before?
A Yes.
Q
Do you remember when I asked you were there some
details about this case that you didn't remember; remember
asked you that?
A Yes.
Q
And you remember your response was, "Yes, there's
I
383
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Det. Rijos - For People - Recross (Ms. AI-Shabazz)
some details I don't remember," right?
A Yeah.
Q And you remember I asked you, "You spoke to the
other undercover about this case, right?" And you said,
"Yes," right?
A Yes.
Q And there were some details you didn't know that
he told you about, right?
A Correct.
Q
Okay. So you're not testifying just on your
observation and memory. Some information has been imputted
to you, correct?
MS. ALPERT: Your Honor, she's testifying.
Q Some of the information that you have is not a
result of anything you saw yours f, right?
A Correct.
MS. AL-SHABAZZ: I.have nothing further.
MR. MOSER: Judge, I have nothing.
MS. ALPERT: Nothing further, Your Honor.
THE COURT: All right. You can step down.
Thank you.
MR. REED: The People call Garret Baldwin.
384
1
2
3
4
5
6
7
8
9
10
11
12 .
13
14
15
16
17
18
19
20
21
22
23
24
25
Det. Rijos - For People - Recross (Ms. AI-Shabazz)
COURT OFFICER: Please take the stand.
Remain standing. Raise your right hand.
Do you swear or affirm that the testimony
you're about to give is the truth, the whole truth, and
nothing but the truth?
THE WITNESS: I do.
COURT OFFICER: Please state your name and
county of residence.
THE WITNESS: Garret Baldwin, New York
County.
COURT OFFICER: Have a seat, please.
DIRECT EXAMINATION
BY MR. REED:
Q Good morning, Mr. Baldwin.
A Good morning.
Q
Good afternoon. What is your occupation?
A Investigative Analyst.
Q
And who are you an Investigative Analyst for?
A
The New York County District Attorney's Office.
Q
Did you go to - ~ did you finish high school?
A Yes.
Q
Did you go to college?
A Yes.
Q Where did you go?
385
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
?2
3
Mr. Baldwin - For People - Direct (Mr. Reed)
A Boston University.
Q Boston University. And could you please describe
for the Judge your -- briefly describe your job duties at
the DA's office?
A I'm assigned to conduct investigations into escort
agencies, and businesses that engage in prostitution and
money laundering.
Q And as part of your assignment at the DA's office
have you participated in an investigation of a club called
the Hot Lap Dance Club?
A Yes, I did.
And as part of that investigation did you access
Q
any internet websites?
A Yes, I did.
Q
Was one for Alexia Moore?
A Yes.
Q As part of your investigation did you learn -- did
you learn that Alexia Moore had a different name?
A Yes, I did.
Q And what was that name?
A Cassandra Malandri.
Q
And did you print out pages of those -- of that
website?
A Yes, I did.
MR. REED: Your Honor, I'm going to approach
386
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
)4
5
you what's been premarked for identification.
MS. AL-SHABAZZ: Judge, I'm going to object
to that. I'm not sure what the People are trying to
establish with this witness or this evidence.
MR. REED: We're getting to it, Your Honor.
MS. AL-SHABAZZ: Well, before you get to it.
I would ask for an offer of proof.
THE COURT: Let's have a sidebar.
(Whereupon, the following discussion
takes place off the record, at the side bar, in the
presence of the Court, the defense counsel, the
Assistant District Attorneys.)
MS. AL-SHABAZZ: Withdrawn.
Q 11m approaching you with what's been premarked
identification as People's Exhibit 4?
MR. STRAZZULLO: Could we see it.
MR. REED: I thought you guys have it.
MR. STRAZZULLO: No, I didn't see anything.
COURT OFFICER: Peoplels Exhibit 4 being
shown to the witness.
(Whereupon, people's Exhibit 4 for
Identification was published to the witness.)
Are those the pages of the Alexia Moore website
Q
387
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
that you printed out?
A Yes, they are.
Q
And what was the date that you printed that out?
A
November 19th, 2009.
Q
And did you examine that site on an earlier date?
A
Yes, I did.
Q And when did you - when was that?
A It was the Summer of 2008, during the
investigation.
And is the content on the pages in front of you
Q
the same or substantially the same as the content on the
pages when you printed out previously?
A
It appears to be an accurate representation of
what I viewed previously.
Does the website offer a way or ways to contact
Q
Alexia Moore?
A Yes, it does.
MR. REED: Your Honor, at this time I move to
offer -- move People's Exhibit 4 into evidence.
MS. AL-SHABAZZ: Voir dire?
THE COURT: Go ahead. I assume you have an
objection.
MS. AL-SHABAZZ: Don't I always.
THE COURT: Okay.
VOIR DIRE EXAMINATION
388
VOIR DIRE BY MS. AL-SHABAZZ
1
BY MS. AL-SHABAZZ:
2
Q You said you saw the website in the Summer of
3 2008. Could you be more specific?
4 A In June and July of 2008.
5 Q Okay. Could you be more specific then that? Do
6 you know what date?
7 A
I don't have the exact date.
8 Q
Okay. So you don't know if you saw the website on
9 June 20th?
10 MR. REED: Objection, Your Honor. It was
11 just asked and answered. He doesn't know the date.
12 THE COURT: sustained.
13
Q
Okay. So you wouldn't be able to tell us whether
14 or not the website is - looked like those photos on
15 June 20th, right?
16 A
What I can say about the website is that certain
17 contents has, in my recollection, remain the same, some have
18 changed. There are some pictures that were added since that
19 time.
20
MS. AL-SHABAZZ: Objection. Move to strike
21 as non responsive.
22 THE COURT: Sustained.
23 Q I'm going to ask you, again. You can't tell us if
24 on June 20th, 2008, the website was the same as those photos
'5 that you're holding in your hand, right?
389
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
'5
A
I cannot say that.
Q
You cannot tell us that, right?
MS. AL-SHABAZZ: Your Honor, I'm going to
object because he can't testify that on June 20th, that
those pictures fairly and accurately represent the same
website images that were on the website on the date
that's relevant to this case.
MR. REED: Your Honor, this website -- the
witness has testified that the pictures are
substantially -- are the same or in substantially the
same condition that they were as he viewed them on
June 20th, of 2008. It's no different then a picture
that's been taken of a crime scene that may have
changed between the date of the crime and the date that
the photo was changed.
MS. AL-SHABAZZ: I know the People would like
the witness to have said he saw the website on
June 20th, but he cannot tell us that. He said,
"Summer." June, he doesn't know specifically what date
he saw the site. We don't know if he saw it before or
after. Therefore he can't possibly say it's fairly and
accurately a representation of the same website that
was up on June 20th, 2008. He can't do it.
MR. REED: And, Your Honor, I would argue
that that line of question is irrelevant. It shows
390
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
this witness has found a website that shows a way to
contact Alexia Moore through her website.
There's been other witnesses that have told
you that on June 20th, 2008, this witness told them to
contact her through her website and not by using a
phone.
Both defense counsel have made big hay about
she didn't get a phone number, there was no location"-
I mean, there was no exact time in which to make this
sexual rendezvous. However, we've had witnesses that
showed
that have told Your Honor
THE COURT: Would this be - could you name
the witness?
MR. REED: The undercover officer.
THE COURT: Are you saying that the
I
undercover officer testified that he viewed the website
prior to June 20th, and after June 20th?
MR. REED: Correct. And that witness told
Your Honor that he saw on that website a way to contact
Ms. Moore, also known as Cassandra Malandri.
MS. AL-SHABAZZ: The People had an
opportunity when that witness was on the stand to put
this evidence in subject to connection for this
witness. They didn't to do.
This witness cannot say that on June 20th,
391
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
even if it's the People's allegation that Ms. Malandri
was able to be reached by this website, they can't say
that it's the same website. He can't say it's
substantially the same cause he can't tell us that he
saw it on June 20th. So I don't know
And this not about our defense theory. This
is basic rules of evidence. He can't lay a proper
foundation to allow this evidence in.
THE COURT: He could allow it in, but it will
g6 to the weight.
MR. REED: May I ask one question?
THE COURT: Did you just hear? You're going
to argue with me? You have something to say?
MR. REED: No, no, no. No, no, no.
THE COURT: Okay. It's goes to the weight.
MR. REED: Thank you, Your Honor.
THE COURT: But I do note counsel's
objection.
DIRECT EXAMINATION
BY MR. REED: (CON'T.)
Q
Now, you testified previously
-- just now that
there is a page on that website that mentions a way to
contact Alexia Moore?
A That's correct.
Q
And you did testify that Alexia Moore is also
392
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Mr. dwin - For People - Direct (Mr. Reed)
known as Cassandra Malandri?
A Correct.
Q Is there a - could you
for the Judge the
page that ment
the contact information Ms. Moore,
also known as Ms. Malandri?
A
Yes. There is a page speci cally that's marked
for booking, and when you click on it, it
ngs page
that list e-mail address. It says, "
ease e-mail
booking request to Alexia Moore at e-mail. com".
MR. REED: I have nothing further for this
witness.
CROSS-EXAMINATION
BY MS. AL-SHABAZZ:
Q Hi.
My name is Ikiesha AI-Shabazz. I represent
Ms. Malandri.
I promise I'll be brief. Okay, I'm not going
to promise you.
I'm going to try to be brief.
When you viewed the website did you send an
e-mail?
A No, I not.
Q Okay. So you don't know if an
1 from that
website actually would go to Ms. Malandri?
A I have no way of -
Q No about that, right? Okay. Are there any
other contact information on that website?
A
Do you want me to look? It doesn't list any other
393
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
For People - Cross{Ms. AI-Shabazz)
Mr. Baldwin
specific way of contacting through this website.
Q Right. Now, this particular website you have to
pay to join, correct?
A
For member contact, yes.
Right. Do you know how much it cost to join this
Q
website?
A No, I do not.
Q
Does the sound $19.99 sound familiar?
A
No, it does not.
Okay. And you're an Investigative Analyst, right?
Q
A Correct.
Q And it was your job to
nd out as much as you
could about this website, right?
A Correct.
Q
And you knew that you had to pay to join,
ght?
A Correct.
Q You didn't find out how much though, right?
A No.
Q So every time somebody comes to this website and
joins, this websites makes money, right?
MR. REED: Objection, Your Honor. He's
incompetent to answer that question.
THE COURT: He doesn't know if it is or
394
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Mr. Baldwin - For People - Cross(Ms. AI-Shabazz)
isn't?
MR. REED: Well, it's to the website.
THE COURT: Overruled. He's an Analyst.
A Could you repeat the question?
Q Every time somebody joins the websites it garners
income, right, makes money?
THE COURT: If you know the answer.
A You have to pay to join so
Q It's a logical conclusion.
Again, he cannot conclude -
MS. AL-SHABAZZ: This is based on the
witness's response. He's looking at me going, "Ah da,
yes" .
MR. REED: Your Honor, I just -- ask to
the -- her -
MR. REED: Characterization of Mr. Baldwin's
expression.
MS. AL-SHABAZZ: 1'm not being offensive or
anything, but that was his expression.
MR. REED: I
my objection is that
Mr. Baldwin is incompetent to make a conclusion on
395
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Mr. Baldwin - For People - Cross(Ms. AI-Shabazz)
whether or not this particular website makes money as
it is not his website.
He never -- there was never any testimony in
his direct that elicited that he was able to go into
websites and evaluate how they make money or if they
make money at all.
MS. AL-SHABAZZ: Judge-
THE COURT: Then you're' saying that he
shouldn't answer that question, and he should not -- he
has nothing to say about booking as well.
MR. REED: Well, other than -
THE COURT: So it's either you're saying
there's a website in here that someone can go in and
book, and she's asking him is it also accessible to
become a member. So you can't have your cake and eat
it too.
MR. REED: Your Honor, may.1 be heard?
THE COURT: Go ahead.
MR. REED: My argument is that Mr. Baldwin
never said that somebody could go in there and book.
He said that on the website -
THE COURT: So what's the purpose of this
witness?
MR. REED: That on this website - this
website actually advertises a way to book Ms. Malandri,
396
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Mr. Baldwin - For People - Cross (Ms. Ai-Shabazz)
and it corroborates what the undercover said that she
told him to contact her through this website.
However, it is not -- it was not in our
investigation. We never made any attempt to actually
see whether or not you could actually book
It's our theory that you can, but it's so
my position that Mr. Baldwin is not competent.
THE COURT: Right, and that's what I want to
say. It's your theory and that's the basis for the
witness as well. So there you go. It's your theory
and I understand that: It was clear to me .. So maybe
counsel has another theory.
Overruled.
MS. AL-SHABAZZ: Can we have a read back? I
don't know where we were?
THE COURT: Money, access to membership.
MS. AL-SHABAZZ: Okay, ght. Thank you,
judge.
Q Did you have -- withdrawn. I just want to make
sure I establish that based on your investigation, right,
you have to pay to join this website, right?
A There's free content and there's pay content on
this site.
Q Okay. So the free content is just you can't
really see anything, it's just what?
397
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Mr. Baldwin - For People- Cross (Ms. AI-Shabazz)
What I had before. This printout of the website
A
is the free content.
Q Okay.
A
That is what's available.
Q
Okay. And then there separate pay content, right?
A
Presumably, yes. There's extra stuff when you pay
to be a member.
Q Right. You get more stuff, right?
And when you go to the website and you view the
free contents, does it advertise to try to solicit people to
go to the pay contents?
A I believe so.
MS. AL-SHABAZZ: Thank you. I have nothing
MR. MOSER: I have nothing.
MR. REED: Nothing, Your Honor.
THE COURT: You c ~ n step down.
THE COURT: People
-
MR. REED: Yes, Your Honor?
THE COURT: Are you done?
Your Honor, the People rest.
THE COURT: You rest on your direct case?
MR. REED: Yes, Your Honor.
398
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
THE COURT: Counsel?
MR. MOSER: Your Honor, at this point, I have
a motion to make to the Court. Would you like to hear
it now? I would be happy to make. it.
THE COURT: Yes.
MR. MOSER: Your Honor, in the beginning of
this case I, of course -- as we all know these cases
were consolidated for
al and I represent the
defendant, Falynn Rodriguez, and as to Falynn
Rodriguez, I have a motion to dismiss because the
People in this case against Falynn Rodriguez have
failed to make out any prima facie case for the crime
of prostitution in violation of section 230.00 of the
Penal Law.
The People have presented to you certain
witnesses who have basically testified as to two events
which took place, which they claim makes out a case for
prostitution.
The first event had to do with the $300
transaction. Ms. Rodriguez was never a part of that
alleged offer or agreement. And I say "alleged"
because there's a lot of issue in credibility in this
case as to the people who testified before you.
Nothing even happened in a back room for $300. They
never went into a back room for $300, and no words were
399
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
stated by Ms. Rodriguez and, in fact as we heard today,
in the written report from the undercover, he states
nothing in reporting to his sergeant of any positive
agreement in an exchange of $300 for any illegal sexual
contact. There is no way possible that the People have
met their burden regarding Falynn Rodriguez and this
alleged $300 transaction, "Let's go in the back and
we'll all get naked together," when Ms. Rodriguez
wasn't even part of the conversation and was just
standing there. They haven't made out a prima facie
case regarding transaction number one.
Now with transaction number two, they also
haven't made out a prima facie case against Falynn
Rodriguez, that being the $5,000 fo; a threesome. It
was the undercover detective, as we heard, who brought
sex into the equation of this entire case. And
after -- and I once again say "allegedly," having a
conversation with the co-defendant in this case because
credibility is certainly an issue. Ms. Rodriguez was
no part of any colloquy between whatever transpired, if
anything, between Defendant Malandri and Ms. Rodriguez.
There was one question that was posed the whole time to
Falynn Rodriguez. When the undercover police said,
"Well, for that kind of money, for the $5,000, I not
only get you, Ms. Alexia Moore, but I get to have sex
400
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
also with Ms. Rodriguez." He says to my client,
Ms. Rodriguez, and this is his testimony, "It's going
to be you." She doesn't say, "Yes." She doesn't say,
"No." She doesn't confirm it. She doesn't deny it.
She doesn't say any of it. She simply says that famous
line now of, "I'm the only one who tosses Alexia's
salad." No follow-up conversation, nothing. And I
asked the detective, specifically, it wasn't me, I
think it was another person, "Do you know what that
means," which and what we've all learned, a slang
expression for sexual oral contact between two people.
It never meant -- they can't make out a prima facie
case that that one line meant, "Okay. I've now agreed
to join in a $5,000 threesome between the other
co-defendant and the detective. It's not possible.
There was never any follow-up question to confirm what
that statement meant.
I understand and completely understand, and
we all understand that at this point of the trial, the
People are going to stand up and say, "Judge, you have
to take all the evidence in a light most favorable to
the prosecution. I understand that.
So if we take all the evidence, at this point
and time, they don't make out a prima facie case
without any follow-up questions in that one statement
401
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
from Ms. Rodriguez. Without any further acknowledgment
by Ms. Rodriguez that she agreed to some $5,000
threesome without a definitive time, without a
definitive place, without a definitive date, where or
place where to meet, to make the leap from this one
statement that was made to an agreement for a $5,000
threesome is garganchuum (ph.). That's a leap that
nobody could .make. Superman couldn't make that leap at
this point in time, and the People can't possibly make
out a prima facie case from one line, from one person
at a stripe club who was touching somebody's arm, who
was laughing and smiling and joking, and that is it.
The detective never took her name, never took her phone
number, had no way to get in contact with her.
Absolutely nothing. And no sex ever transpired between
the defendant and anyone in that nightclub on that
evening or any other date.
In this case the People, when it comes to
Falynn Rodriguez, have absolutely failed to make out
any prima facie case against Ms. Rodriguez. She never
in violation of Section 230 of the Penal Law, never -
I'm sorry. Never engaged in any sexual conduct. Never
agreed or offered to engage in any sexual contact with
another person for a fee.
Why there was no recording devices here? I
402
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
don't know. That was up to the detectives. They
decided not to use them. They were certainly available
at that period in time.
Your Honor, regarding Ms. Rodriguez it's just
not here. There's nothing here that the People can
sink their teeth into and say to move forward from this
point on and say, "All right, we have a case against
her". There's nothing, and I'm asking you to, please,
issue a trial order of dismissal at this point to end
this insanity that Ms. Rodriguez is going through.
Thank you.
MS. AL-SHABAZZ: Should I make my first or
let them respond?
THE COURT: Let them respond.
MR. REED: All right.
Your Honor, I first just like to direct your
attention to the Prosecutor's Information and the Penal
Law. Actual sex is not required to be guilty of the
crime of prostitution in violation of Penal Law 230.
THE COURT: That's not his argument.
MR. REED: Well, it's part of his argument.
He said there was no sex and that nothing ever happened
in these rooms. All we need is an offer
THE COURT: Well, you conceded that there was
no sex, so let's move passed that.
403
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
MR. REED: First, I'd like to good through
the officers. I'd like you to -- it's the People's
position that these officers testified credibly. When
they were asked a question on direct and on cross each
of the officers, and to include our Investigative
Analyst, Mr. -
THE COURT: Let me just say this, People, so
you can move forward. He didn't say -- well, I think
his focus point was more on what was said. And I think
that he's deeming your officers credible because he's
using their testimony as part of his argument, so
MR. REED: Are you going to credit our
officers?
THE COURT: No, I'm saying he's deeming
based upon his argument or his testimony, he took the
officers at their word. That's what -
MR. MOSER: Judge, on summation it might be
different, but at this point in time -
THE COURT: That's what I'm saying. At this
point in time, based upon counsel's argument, he's
taking their testimony as it stood on the stand for the
basis of the trial order of dismissal.
MR. REED: Your Honor, I'm going to hand up
several cases to you and to defense counsel. One
each -
404
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
MS. AL-SHABAZZ: Thank you.
MR. REED: And one for Your Honor, and these
are People vs. -- one moment, Your Honor. 11m sorry.
People vs. Imani, People vs. Troy, and People vs.
Colon.
And in Imani it says that, "An agreement for
prostitution was found," and what they found as an
agreement for prostitution were, "Defendant simply
nodded and said nothing at all." So that's even less
then what Ms. Rodriguez did in this case, Your Honor.
In this case Ms. Rodriguez made an assertive
act when the undercover looked at her during -- I'm
not -- during the second agreement that was made, when
he said, "Are you sure it's going to be you,
Ms. Rodriguez? And she said, "11m the only one that
tosses Ms. Malandri's salad." And the undercover
testified that that meant to him, that meant that they
were going to engage in a threesome at some later time.
And, Your Honor, it's the People's position
that that assertive act that said that, "I'm the only
one that tosses Alexia's salad," is Ms. Rodriguez's
it's her way of , letting the undercover know that -
it's basically her way of saying, "Yes". She doesn't
affirmably have to say, "Yes" to make this agreement,
it's our position, but she did in making that
405
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
statement, Your Honor.
Your Honor, going back to just -- there were
two agreements made that the undercover testified to.
When the undercover entered the club with the ghost and
he dealt with Ms. Malandri, it's our position -- the
undercover testified that every time he talked to
Ms. Malandri, there was -- Ms. Rodriguez was present.
There w'as never a time that he had a conversation that
he testified to that he had with Ms. Malandri that
Ms. Rodriguez wasn't there. She was there when Ms.
Malandri said, "Let's go back into this private room,
and get naked and touch each other, and it will cost
$300 for 15 minutes."
It's the People's position that that
statement was an offer to have sexual conduct for a
fee, Your Honor. And Ms. Rodriguez was there. She was
within earshot. We made light of the -- we made a lot
of hay about the noise conditions. She could hear that
in fact, touching
conversation clearly because she was,
the undercover and in very close proximity to
Ms. Malandri when she said it. And so just
-- and at
the same time rubbing his arm. She never said, "No,
this isn't me. I don't want to do this. This isn't my
style." She stayed there the whole time. Then when
they had the conversation about the $5,000, she never
406
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
got up from the bed and said, "No. You know what, I
don't want to be a part of this." When the undercover
said -- asked, "Are you sure that's going to be you,
Ms. Malandri?" She said, "I'm the only one that tosses
her salad." And then later on that day -- that night,
every time that Ms. Malandri approached the undercover
to see if he wanted to get a taste of what was going to
happen the next day, who was there? Ms. Rodriguez
every single time.
Now, Your Honor, it's come out in testimony
that, you know, Ms. Malandri is more of a spokesperson.
You know, it would be nonsensical if Ms. Malandri makes
the agreement and then Ms. Rodriguez comes back behind
Ms. Malandri and makes the same agreement twice. It
doesn't work like that, Your Honor. Ms. Malandri
Ms. Rodriguez was there, and she -- it's the People's
position that she made an assertive act that she wanted
to be part of that sexual rendezvous the next day at
the hotel when she said, "I'm the only one that tosses
Ms. Malandri's salad. One moment, Your Honor.
And if you look at Troy and the Imani case,
the Court found that prostitution with another
person that they found prostitution when another
person did the negotiation for the prostitute.
And in this case it's the People's position
407
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
that Ms. Malandri not only made a negotiation for
herself, she did it for Ms. Rodriguez, because
Ms. Rodriguez was her sidekick that night. They came
together as a team, Your Honor. Never did the
undercover nor his ghost ever say that he had a
conversation or even saw them outside of the sight of
each other. They Mere always together, Your Honor.
If you look at Corona, you'll see that -- one
moment, Your Honor.
Oh, Your Honor, although it's the People's
position that you can have a prostitution agreement
made when the undercover officer first, we have a case
that People vs. Corona which says that, "Even if the
purchaser makes the offer and the defendant agrees,"
which they both did in this case right here, that's
enough. That's enough.
One moment, Your Honor.
And if Ms. Malandri -- if Ms. Rodriguez was
not a part of this, Your Honor, why would she be with
Ms. Malandri throughout the rest of the night each time
that she approaches the undercover? Why? It doesn't
make sense. It doesn't make any sense at all. If she
knows that every time Ms. Malandri comes up to the
undercover and says, "Why don't we get a taste of
tomorrow night?" Why does she stay there. She never
408
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
says a word. She never does.
Your Honor, I'd also like you to look at
People vs. Bellow which is a Court of Appeals case.
It's not a prostitution case, but I think -- if you
look at our theory that these defendants did act in
concert -- Your Honor, it's the People's position that
not only did Ms. Rodriguez offer -- it's our position
that both of these defendants, both offered' and made an
agreement was this undercover, and they acted together
in concert.
And I'd looked -- and I ask you to look at
the People vs. Bellow which is a Court of Appeals case
where to establish the acting in concert theory with
regard to a drug sale, it's says, "That the People must
prove that the defendant acted -- "that the defendant
intentionally and directly assisted in achieving the
ultimate goal of the enterpriBe. The illegal sale of a
narcotic drug."
And my argument to Your Honor is that Ms.
Rodriguez did. She was there every night. She was
rUbbing -- I mean she was there the whole night with
him. She rubbed him, she had a lap dance with him, she
was there for every conversation and she, in fact,
participated in those conversations, and she never
left. She never left Ms. Malandri's side. One moment.
409
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
2S
- Proceedings
And just to reemphasize as per Corona, even
if the undercover proposition the defendants first for
sex which is not our position, because it's our
position that Ms. Malandri and Ms. Rodriguez approached
the defendant first and offered and agreed to have sex
with him for $300, not sex, but sexual conduct for $300
in that private room, but even if he did it first, even
if said, and excuse my language, even when he said, "I
want to fuck you," and that was the first time sex was
ever introduced into this -- to the events of that
night, it will still be
they would still be guilty
under Penal Law 230.00, in violation of prostitutiori,
if they agreed with them, which they did, and that's
per Corona, Your Honor. One moment.
Your Honor, as per Rodriguez that's my
argument.
MR. _MOSER: Can I just reply for one minute,
Judge?
THE COURT: Go ahead.
MR. MOSER: Judge, just in reply.
Ms. Rodriguez mere presence and the mere presence at an
event is certainly not enough to get not only a
conviction, but to make out a prima facie case.
I
Ms. Rodriguez didn't nod her head.
Ms. Rodriguez didn't say nothing. When you -- if you
410
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
take the officer at his word, which is what I have to
do right now, it was $5,000, not for a threesome in the
beginning, It was $5,000 allegedly, if you believe the
officer, for one sexual encounter with the
co-defendant. It was the officer who then said, "Well,
for that money, I get both of you." And looked at
Falynn Rodriguez and said, "Is it going to be you?"
And then she gave an answer that was not responsive to
the question. She gave an answer of performing -- a
statement that performing a sexual act one on one, an
oral sexual act which we know what it is. It wasn't,
"I agree." It wasn't, "Okay, let's go." It wasn't,
"Meet me the next day." It was one statement and
without any follow-up questions by the detective it's
impossible, is what I'm saying, for him to make that
garganchuum (ph.) leap that there was an agreement to
have a threesome for $5,000 without any follow-up
question whatsoever. Detective could have said, "All
right, Falynn, does that mean you're going to come with
us tomorrow, you know, to the Hilton Hotel, and we're
going to join in this?" That's what he should have
asked. He could have asked anything after that. He
could have said, "Well, Falynn, you know, can I do this
with you, or can I do this with you tomorrow night?"
Nothing. There was one statement that Ms. Rodriguez
411
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
made, and we know that the detective knew what that
slang expression meant because he testified about it.
Judge, I thank you for your time, and I thank
you for staying late for this argument, and I look
forward to a decision which I still vehemently submit
that they haven't made out their prima facie case
pursuant to Falynn Rodriguez.
MR. REED: One moment, Your Honor. Just a
brief rebuttal.
Your Honor, if you look at People vs. Marco;
we're handing that up now, you'll see that the Court in
that case found there to be an agreement when a small
comment with no follow-up is enough to find that an
agreement was made.
Also, Your Honor, we all live in New York.
We know that when she said, "I want to toss her salad,"
if you look at the Penal Law and you look at our theory
that they acted in concert. We know that if you look
at Penal Law Section 20.00 which advises the Court on
criminal liability for the conduct of another, that
liability is found when this person engages in conduct
which constitutes an offense not to the -- I know you
know the law, Your Honor, but just to remind you, "When
that person acts in either the mental culpability
required for the commission thereof, solicits a
412
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
request, commands, importune, or intentionally aids
such person to engage in such conduct," and I argue to
Your Honor that she had the mental culpability when he
asked her, "Did you -- are you sure it's going to be
you, Falynn?" She doesn't -- she replies -- she
responds with a statement that included a sexual act,
Your Honor. It's not like she said, "I'm the only one
that drives Ms. Malandri's car. I'm the only one that
does her homework. I'm the only one that tosses her
salad." And we are all New Yorkers here, and we're
not
THE COURT: Excuse me. People, did you read
the Marco case?
MS. ALPERT: Yes.
THE COURT: Because I find it different then
what you've indicated. Because in Marco you said
nothing was said. Initially
MR. REED: Oh, no. I said the point that of
a small comment with no follow-up is enough to find
THE COURT: No, because they went on to say
that, "She entered the vehicle." And he also said to
her, "To get laid, but not -- she said, "To get laid
but not short changed." And she -- her response was,
"No problem." That's-
MR. REED: This case is cited in
413
1
2.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
THE COURT: Oh, I know it's cited. I'm just
telling you based upon your interpretation -
MR. REED: If that your interpretation of it,
but I direct Your Honor's attention to -
THE COURT: No, that's not my interpretation.
You said that nothing was -- you said that nothing was
said, just a nod. But it was initially a nod, then she
went into the car, he said details, and her response
was, "No problem." I'm just putting that on the
record.
MR. REED: I direct your attention to the
other three cases I handed up shortly.
THE COURT: Oh, I can't read all of them
right now, but -
MR. REED: And I'd like you to take special
attention to People vs. Bellow. I believe that's a
Court of Appeals case. If it's not, I apologize.
Where it is establishes acting in concert, criminal
liability, or acts of another. And just read -- sorry,
Your Honor.
And when the undercover asked her that
question, Your Honor, "Are you sure it's going to be
you?" Your Honor, she responded with what we all know
now is a sexual act, okay.
And it's our position that she's not without
414
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
guide and that statement was her affirmative response,
"Yes, I agree to have sex with you at some later date
for $5,000."
MR. MOSER: Thank you.
We are going to -- are you done?
MR. REED: One moment, Your Honor. Just one
moment, Your Honor. I'm sorry.
If you look at Imani, Your Honor, over the
lunch hour or whatever, it says that the conversation
that was had in Marco, you don't need a
of that
extra. It says, "A nod alone is enough."
Thank you, and that's it for my argument.
THE COURT: Where -- who says that?
MS. ALPERT: In Imani -- People v. Imani. It
distinguishes from Marco.
THE COURT: Okay, cause I'm just reading
Marco.
MS. ALPERT: Okay.
THE COURT: Like I said, I'm not that quick.
MS. ALPERT: Sorry.
THE COURT: But I will read it.
THE COURT: Okay, and Bellow
-- you gave me
like five Bellow -- yeah, I had five copies
of Bellow.
415
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
I just gave them back.
MR. REED: Oh, okay.
THE COURT: All right. I'm going to see you,
guys, at 2:30.
MR. MOSER: Thank you, Judge.
MR. STRAZZULLO: Thank you, Judge.
(Whereupon, there is a luncheon
recess taken and the case adjourned to 2:30
p.m.)
AFT ERN 0 0 N
S E S S ION
THE CLERK: Recalling case on trial.
MS. AL-SHABAZZ: May I?
THE COURT: Yes.
MS. AL-SHABAZZ: Good afternoon, Your Honor.
On behalf of Ms. Malandri, defense moves for a trial
order of dismissal. Understanding that the standard of
review at this juncture is to view the People's
evidence in the light most favorable to them for that
purpose only, and for the purpose of this motion, I
will address the facts of this case in such a light.
The People's theory obviously is not that
anyone ever engaged in actual sexual intercourse. So
the theory can only be that they either offered and/or
agreed, and I'm not sure which theory the People are
416
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
relying on.
It seems like it's offer.
There are only two ways to consider in which
the People can be claiming that there was such an offer
and/or agreement. The first instance would be when
there was conversation with respect to going into a
private room for $300 for 15 minutes where you could
get naked and touch.
I submit to this Court that that doesn't
establish a prima facie case for prostitution. The
People's only -- own witness testified that there was
never any conversation with respect to what would
happen once they were in the room. There was no
conversation with respect to where he would be touched
and his own testimony established that during the
course of even the lap dances and the conversations
that the only touching that occurred, occurred on his
hand, on his arms, and on his chest. That there was
never any sexual contact with a genital area, a groin
area, a buttocks area, or anything of the like.
I submit to this Court that on that theory
alone, the People have not established a prima facie
case at least with respect to that incident, and I
think the case should be dismissed. Not that there are
separate counts, but that if the Court is considering
that, in and of itself, the People have failed to
417
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
establish -- to meet their burden.
Secondly, the only other incident that the
People could be re rring to, is the conversation in
which the undercover, and he admitted on the stand, he
solicited sex. He was the first person to inject any
sexual conversation into the evening. First asking
John, "Who are those girls? I want to fuck her." And
then subsequently saying to Ms. Malandri, "I want ,to
fuck you."
However, there was no consummation of the
agreement. There was no act towards the agreement. He
indicated that he said that they were -- they were
suppose to meet the next date at a hotel. There was no
time. There was no specific place given. He didn't
tell them which hotel he was in. When I inquired which
hotel, he wasn't even sure where the Hilton Hotel was.
The People are relying on People vs. Marco
and People vs. Troy for the proposition that it doesn't
take much to engage in prostitution. If you agree
something as little as a nod can constitute an
agreement. However, the People's reliance on this case
is ployed because both of these cases are not simply
about a nod. There is so much more. There's a
conversation. There an actual act. In People vs.
Troy -- withdrawn.
418
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
In People vs. Marco, the defendant actually
gets in a car. I'm sorry. I just have to grab it.
In People vs. Marco, it specifically says
that the police officer testified, "That while someone
else may have negotiated the sexual act, the person who
eventually was convicted of prostitution actually
entered the car." It was contemporaneous with the
conversation. There was a day, time, and place, and
it's clear from the evidence what that person intended.
It's clear. This is not that case.
Equally with respect to Imani -- I apologize.
I misspoke. People vs. Imani, same exact fact pattern
to the extent that this person actually gets into a van
with an officer and has a conversation about performing
oral sex even though they only nod. We all know that
you can't gage a person's intent by reading their mind.
You can only gage their intent by what they do. We do
everyday when we cross the street and we see a car
that's slowing down, and we anticipate that they're
going to stop. We think that's their intent. And we
do it everyday and we do it well or we get hit by a car
ten times a day.
In this case, there was nothing. There was
nothing that was testified to by the People's witness
to indicate that Ms. Malandri at anytime intended to
419
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
have sex with them, agreed to have sex with the primary
undercover.
I would ask that the Court dismiss this on a
trial order of dismissal. I also would ask that the
Court, if not prepared to 'rule today on the trial order
of dismissal, that the Court would hold it in abeyance
so that we continue -- can continue with the trial
instead of maybe adjourning while the Court considers
this motion but in a judicial efficiency and for
scheduling - just my schedule. I don't know about
anybody else, but to go forward.
Thank you.
Your Honor, I oppose defense counsel's motion
to dismiss this case. As Your Honor knows, you have to
look at -- you must look at this case in the light most
favorable to the People before you credit the officers
on what they said, and I'll deal with the rst
agreement would be -- one of the two, agreements that
were outlined in the undercover's testimony, the one
involving the $5,000.
And I point to the Penal Law, Your Honor,
when I argue that it doesn't matter that the undercover
initiated the conversation in regard to sex. You don't
need that to establish guilt under the Penal Law -
420
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
under Penal Law 230.00. You just need an agreement.
And in this case, Your Honor, the undercover, excuse my
language, said, "What I really want to do is fuck you,
Alexia." To which she said af rmatively, "Can you do
five with three zeros?"
Your Honor, it's my -- it's the People's
position that that right there is enough to establish
guilt under Penal Law 230.00 especially with the
standard of view that is required at this juncture.
I would take -- I would dispute defense
counsel's reading of Marco and Imani. It's the
People's position that in Imani, they distinguished
Marco, and they said, "That even though in this case
the respondent did not enter Officer Dove's vehicle,
like the respondent did in the Matter vs. Marco, the
evidence established that she agreed to perform oral
sex upon Officer Dove for $40, and with just a nod,"
Your Honor.
In this case, Ms. Malandri agrees to have sex
with the defendant not with a nod, but with words. And
I submit to Your Honor that those words are, "Can you
do five with three zeros."
Now, not just that, but in the -- previous to
that conversation about having sex for $5,000 with the
undercover at the hotel the next day, there is -- it's
421
1
2
3
4
5
6.
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
the People!s position that there was an agreement made
prior to that when Ms. Malandri said, "We can go back
to -- back in one of the private rooms, get naked and
touch each other for $300.
11
And on direct, the
undercover testified that when she said that she looked
at the defendant's groin area.
And it's the People position that when you
make an offer to get naked with somebody and touch
them, that is an offer to engage in sexual conduct.
Subsequent to the proposition to the
agreement that was made for the $5,000, this defendant
along with Ms. Rodriguez approached undercover several
more times that night. He said at least three
occasions, I believe. If he didn't, I apologize, but
it was at least three occasions in which she said,
"Would you like to get a taste or a preview of what is
to happen tomorrow," and it's the People's position
that that is a further - if it's not an agreement, it
at least bolsters the agreement that she made with
Mr. - with the undercover for the $5,000.
If you look at Corona, finally, where
pros tution was found even when the undercover made
theinitial proposition, "Agreement alone is enough."
That's what the Court found. And, "The defendant does
not need to make an offer."
422
1
2
3
4
5.
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
So for those reasons, the reasons that -- the
People's position is that there were not one, not two,
but several agreements made that night, the People
oppose defense counsel's motion to dismiss at this
time.
MS. AL-SHABAZZ: Your Honor, my only response
to that would be that in Imani the Court points out,
"That this happened while the respondent was standing
directly next to Jones," and, again, the Court is
making note of the contemporaneous act, as well as the
exchange -- in the agreement for the exchange for money
in a location known for prostitution.
, and I don't
believe that Imani controls.
Thank you.
In regard to the trial order of dismissal to
dismiss the sole count of the Prosecutor's Information,
Penal Law Section 230.00, the Court finds the trial
evidence is not legally sufficient to establish the
offense charged in respect to Defendant Falynn
Rodriguez.
In respect to Defendant Cassandra Malandri,
the Court reserves its decision.
this was a location known for prosti
423
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
MR. M O S ~ R : Thank you, Judge.
MS. AL-SHABAZZ: Judge, defense is ready to
proceed. Defense calls Cassandra Malandri to the
stand.
(Whereupon the defendant takes the stand.)
COURT OFFICER: Remain standing. Raise your
right hand.
Do you swear or affirm that the testimony
you're about to give this Court is the truth, the whole
truth, and nothing but the truth?
THE DEFENDANT: . I do.
COURT OFFICER: Okay. In a loud, clear,
voice, please state your name, spelling your last name,
and your county of residence?
THE DEFENDANT: Cassandra Malandrii
M-A-L-A-N-D-R-I, and Rochester County is my County.
MS. AL-SHABAZZ: May I inquire?
THE COURT: Proceed.
MS. AL-SHABAZZ: Thank you, Judge.
DIRECT EXAMINATION
BY MS. AL-SHABAZZ:
Q
Ms. Malandri, do you go by any other name then
Cassandra Malandri?
A Yes, by Alexia Moore.
Q
Were you working at the Hot Lap Dance Club on
424
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
24
25
Deft. Malandri - For People - Direct (Ms. AI-Shabazz)
June 20th, of 2008?
A Yes, I was.
Q
And were you working as a dancer there?
A Yes, I was.
Now, you have been present for this entire trial,
Q
right?
A Yes?
Q
And you saw -- you had an opportunity to see
Ondercover 2948, correct?
A Yes.
Q
And on June 20th, 2008, did you give that
undercover two dances?
A
Yes, I gave him two dances.
Q
Those were lap dances?
A Yes.
Q
Okay. At any point in a conversation that you had
with Undercover 2948, did you ever ask -- did
ever tell
...~ ~ , ~ . ~ , ~ - ~ ~ ~ = . ~ " ~ - . ~ . ~ .
him that it would cost
A Never.
Q
Did you ever use the words "five with three zeros?
A I don't speak that way.
Q
Did you ever agree to meet with him the next day
A No.
Q
Did you ever agree to meet with him for any
425
Deft. Malandri - For People - Direct(Ms. AI-Shabazz)
1 purpose?
2 A Nothing.
3 Q Did you ever approach him after those dances for
4 the purpose of - withdrawn. Did you ever approach him
5 after those dances and ask him, "Would you like a taste of
6 tomorrow"?
7 A
No, I approached him to ask for more dances.
8 Q
Did you ever ask him to go into a private room for
9 $300 to get naked and touch?
10 A No.
11 MS. AL-SHABAZZ: I have nothing further.
12 MR. REED: Your Honor, I need a brief moment.
13 THE COURT: Take your time.
14 CROSS-EXAMINATION
15 BY MR. REED:
16 Q
Good afternoon.
17 Ms. Malandri, you worked in the Hot Lap - you
18 worked in the Hot Lap Dance Club on June 20th, 2008,
19 correct?
20 A Yes.
21 Q
And how long had you worked there for?
22 A
About nine months I would say.
23 Q
And when you got. to the Hot Lap Dance Club on
24
June 20th, 2008, how were you dressed?
25
A Sweatpants.
426
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Deft. Malandri - For Defense - Cross (Mr. Reed)
Q
Did you wear sweatpants the whole night?
A
No, I changed into a dancer outfit.
Q
Can you describe for the Judge what a dancer
out t is?
A
Lingerie; a short skirt, a bra, halter top, high
heels.
Q
Do you recall what you were wearing that night?
A
Not the exact outfit, no.
Q
Is it fair to say that it was something similar to
that?
A Of course.
Q
And you worked at that dance club in order to make
money, right?
A Yes.
Q
And approximately how much money do you make on an
average at that club per night?
A It can totally vary from anywhere from $100 to
$600. It's always different.
Q And is it fair to say that when you're at that
club you approach different patrons in order to ask them to
have dances?
A Yes.
MS. AL-SHABAZZ: Objection. I'm going to say
this is irrelevant. It's beyond my direct and it has
nothing to do with whether or not there was an
427
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
agreement to have sex with this undercover.
Q
You can answer the question.
A I said yes.
Q Okay. And that night you did approach the
undercover, right?
A I believe he approached me.
Q Was this in -- this was in the big part of club;
is that right?
A Yes.
Q And the lighting conditions were about - was a
little bit less than this?
A
It's very dim, yes.
Q
And what about the noise level?
A
It's loud. There's music playing. It's a night
club.
Q
And prior to that night had you ever seen that
undercover officer before?
A
Not to my knowledge, no.
Q
And when you approached him -- do you recall
whether he approached you or you approached him?
A He approached me.
Q
And isn't true that you asked him to have a dance?
A Yes.
Q
And isn't it true that you quoted a price for him?
428
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A Yes.
Q
And what was that price?
A
It was $40. $20 for me and $20 for Falynn.
Q
And you, in fact, did go and have that dance,
didn't you?
A Yes.
Q
And you had it with Ms. Rodriguez, right?
A Yes.
Q And this dance wasn't in that big room.
It was in
a separate room; is that right?
A It's a separate room where there are other people
having dances there.
Q And some of those other people -- and in that room
there's a bed; is that right?
A Yes.
Q
And there are couches, right?
A Yes.
Q
And do you recall how many other people were in
that room that night?
A It was full.
Q
But you and Ms. Rodriguez had your dance with the
undercover on the bed; isn't that right?
A Yes.
Q
And during that dance you were still dressed the
same way; is that right?
429
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
De . Malandri - For Defense - Cross (Mr. Reed)
A Yes.
Q You are in lingerie?
A Yes.
Q As well as Ms. Rodriguez; is that right?
A Yes.
Q And you were on top of the undercover at one
point; isn't that ght?
A Yes.
Q And isn't true that the undercover was laying
down on the bed at one point?
A Yes.
Q
And you were on top of him?
A Yes.
Q Were you straddling him?
A Yes, I was on top of him. Yes.
Q
Were you straddling -- do you remember what
portion of his body you were straddling him on?
A Probably his waist, his hip.
Q Is it fair to say that you were over his genital
area?
A Not rectly.
Q
What about Ms. Rodriguez, where was she at this
point?
A We both were switching positions.
Q
But you never left the room while that dance was
430
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Deft. Malandri - For Defense - Cross {Mr. Reed)
going on, correct?
A No.
MR. REED: One moment.
Q
And during this dance you were touching himi is
that right?
A
On his arm, not anywhere else.
Q
But it's fair to say that your leg as you were
straddling him were touching him?
A
My legs were on the bed, no.
Q
Excuse me?
A
My legs are on the bed. My knees are on the bed.
11m
over him.
Q
What about
your genital area?
A It's actually in the air over his waist.
Q
It never touches his body?
A No, I do more of an air dance.
Q
An a dance?
A Yes.
Q Could you describe to the Judge what an air dance
is?
A
Basically you're sitting over the man and instead
of directly sitting on him; you're not grinding. It's more
like, basically, it's that much space between you and him.
It's like an air dance. Like it's more simulated.
Q
And at some point you and Ms. Rodriguez switch?
431
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A Of course.
Q Did 'you observe Ms. Rodriguez dancing?
A Yes.
Q Was that an air dance too?
A
We dance the same way, yes. We will more interact
with each other.
Q
And you had a conversation with the undercover,
right?
A
About dancing, yes.
Q
But you did have conversation, right?
A Yes.
Q
And it wasn't too loud for you to hear the
undercover at all?
A It's pretty noisy.
Q
So did you hear the conversation that you had or
didn't you?
A
I did hear the conversation, yes. It's -- you
have to ask people to repeat themselves a lot.
Q
Okay. And at some point during the conversation
he asked you whether or not you're the one on the website?
A Yes.
Q
Is that right?
A Yes.
Q
Do you remember that?
A Yes.
432
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q
And what was your response to that?
A Yes.
Q
And at some point during that conversation you
flirted; isn't that right?
A
That's what an entertainer does, yes.
Q
Is it fair to say that an entertainer at that
club, a dancer, will flirt with the individuals in order to
make more money, right?
A To keep getting
dances, correct.
Q And that's the purpose for you being there -
A Correct.
Q Isn't that right?
A Correct.
Q And not only do they provide dances at that
location, there are other things that are involved?
Q
Isn't it true that there are other -- strike that.
As far as your participation at club you don't just dance
there, do you?
A
I do a show with my partner, Falynn.
Q
And.could you describe to the Judge what that show
is?
MS. AL-SHABAZZ; Objection. It's irrelevant.
It's irrelevant with respect to why we're here today.
433
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
It's irrelevant.
MR. REED: Your Honor, it's goes to her
credibility and also to -
MS. AL-SHABAZZ: Credibility about what?
MR. REED:
I would just like to finish -
THE COURT:
Overruled. I'll see. I'll give
you a little latitude. I'll see where it goes.
Q
You can answer the question, Ms. Malandri.
A
I'm sorry. Can you repeat that?
Q
Oh. Could you describe for the Judge your act
with Ms. Rodriguez?
MS. AL-SHABAZZ: I renew my objection. It's
irrelevant, and it's the People -
Your Honor, the People all along were
challenging or trying to anticipate the defense theory
that we were going to come here and say that Ms.
Malandri is a lesbian. And now it seems as if the
People are trying to get Ms. Malandri to say that.
It's not our theory. It is way outside the scope of my
direct. I never asked her about any of that. I'm
sticking to the incidents in which the People have
leged there was an agreement for sex. That's it.
Everything else is irrelevant.
MR. REED: Your Honor, you already ruled on
this question, and you ruled on you're not going to
434
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Deft, Malandri - For Defense - Cross (Mr. Reed)
allow us to bring in any other witnesses to rebut her
claim of being a lesbian anyway, so -
THE COURT: It's collateral.
MS. AL-SHABAZZ: We don't have that. That's
exactly my point. That why I'm objecting because it's
irrelevant. He's asking her to describe her -- what
show she does. What relevance does that have?
Credibility?
MR. REED: Your Honor, it has at least the
same amount of relevance as it does
THE COURT: I said overruled. You can ask
the question. I said I would give you a little
latitude. We'll see.
Q
Ms. Malandri, you can answer the question.
A
I perform a show with Falynn Rodriguez that is a
simulated girl-girl show.
Q Okay. And how long have you been doing that show
with Ms. Rodriguez prior to June 20th, 2008?
MS. AL-SHABAZZ: Objection. Irrelevant.
Q
And you do that show for money, right?
A Correct.
Q
And how do you get paid for that show?
MS. AL-SHABAZZ: Objection. Irrelevant.
435
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Q
Now, Ms. Moore -
MS. AL-SHABAZZ: Objection. Her name is not
Ms. Moore.
MR. REED: I apologize.
Ms. Malandri, you do -- you have a website, don't
Q
you?
A Correct.
And you're familiar with the content of that
Q
website, aren't you?
A Correct.
Q
And, in fact, you helped to create this website,
didn't you.
A
It's a legal business. It's an S-corp.
Q It is legal?
A Of course.
Q And you are familiar with all the content on that
websites?
A Of course.
Q And you're familiar with -- is the website still
up today?
A Yes, it is.
Q
Was it up on June 20th, 2008?
A
It has been up for a few years, yes.
Q And you were familiar with the content of that
25 website on June 20th, of 2008, right?
436
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
A Yes.
Q
Nobody else created that without your knowledge?
A
I paid somebody to create the website. I
personally did not create that website.
Q But you reviewed what was on it, right?
A Yes.
Q And on that website isn't it true that you did -
there is a page on June 20th,. 2008, that was labeled
something to the effect of booking request, right?
A
Those e-mails do not go to me.
Q
Okay. But -
A It goes to -
Q
One moment. Could you just
A
Someone that handles all my booking.
Q I understand, but there is - just answer the
question
A Yes, there's a page.
Q That 11m asking.
A Yes.
Q Okay. And on that page that says, "Booking
Request," on June 20th, 2008, there was a section for
there was a way in which to contact you; isn't that true?
A Yes.
Q And the way in which to contact you was through
25 e-mail; isn't that right?
437
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A
Yes, which do not go to me.
Q
But on this booking request and -- but this
website is in your name?
A No, it's a corporation. It's an S-corp. It's not
my legal name.
Q What was the name of the website on June 20th, of
2008?
A
Alexia Moore. It's not owned by me. It's an
S-corp.
Q But you went by the name of Alexia Moore on
June 20th, of 2008, right?
A Yes.
Q
And on that website it's said, "If you want to
contact me, then e-mail me," correct?
A Correct.
Q And "me" doesn't refer to anybody else but you;
isn't that right?
A It's a fantasy website. If you e-mail the
website, it does not go to me. That is what I'm stating.
Q Who does it go to?
A My web master.
MR. REED: One moment.
Q
On June 20th, 2008, to your knowledge, did it say
whether those e-mails went to anybody but you?
A I do not recall exactly what it says. I'm sure it
438
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
says it goes to me as I want people to join my website.
Q But on June 20th, 2008, do you know whether it
says, "It goes to my web master"?
A
It says it goes to me as no one would join my
website if it said it goes to my web master.
Q Is it your testimony today that you don't know who
it said it went to on June 20th, 2008?
A
No, it always said it goes to me as I would have
zero members if it said it went to somebody else.
Q And also on Alexia Moore.com, on June 20th, of
2008, there's a section on your page that advertise
different -- I don't want to say shows, but different
A Photo shoots?
MS. AL-SHABAZZ: Don't help him.
Q
Different assignments that you had on there?
A Yes.
Q And some of those assignments were, you know,
in
areas of fashion?
MS. AL-SHABAZZ: Objection. This is
irrelevant. If she's running a cat walk somewhere,
it's irrelevant. I'm sorry, Judge. It's irrelevant.
MR. REED: Well, Your Honor, I'll strike that
question. Withdrawn.
THE COURT: Okay, sus ned.
Q
Is it true that some of those assignments included
439
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Deft. Ma1andri - For Defense - Cross (Mr. Reed)
girl-girl work?
MS. AL-SHABAZZ: Again, objection. It's
irrelevant.
MR. REED: Your Honor, ,I believe it's
relevant in that the undercover testified that there's
a way to contact her to have sex, and it was through
this website, and this website says it has -- it
advertises, "You can e-mail me" and some of the things
that you can e-mail me about are fashion." But we will
withdraw that. But it says "girl-girl work" which
implies a sexual act.
THE COURT: And she also responded, cbrrect
me if I'm wrong, that it doesn't go directly to her.
That it goes to her booking agent.
MR. REED: Okay, but -
THE COURT: So what's your question?
MR. REED: My question is, isn't it true that
on her website, under her information, it shows that
she has assignments that cover girl-girl work.
MS. AL-SHABAZZ: I renew my objection. I
renew my objection.
THE COURT: What's the relevancy?
MR. REED: The relevancy, Your Honor, as I've
explained was that the undercover testified that Ms.
Malandri said that, "You can contact me. If you want
440
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
to contact me, contact me through my website," and it's
an e-mail.
THE COURT: What does that have to do with
girl-girl?
MR. REED: Because-
THE COURT: Regardless of -- what she said is
if someone contacts her for booking, be it a girl or a
boy, that you have to go through someone before you get
to her. She already answered that question.
Regardless of whatever the sexual relations may be or
if that. I don't -
MR. REED: Your Honor, the implication is
that when you do contact her through this e-mail,
through this e-mail at this website, that there are
certain things that she advertises on her own website
that she does once she contacted no matter if it goes
through a web m a s t e r ~
MS. AL-SHABAZZ: Judge, I don't even know
THE COURT: You have to ask the basic
questions because I think you're jumping.
First of all, I don't know if I'm going to
let you go there, but I think you have to ask about
five questions before you get to that point.
THE COURT: Take your time.
441
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q
So your web master is one individual?
A Well, six.
Q Do you recall one of those individuals name from
June 20th, of 2008?
MS. AL-SHABAZZ: Objection. It's irrelevant.
MR. REED: It's very relevant, Your Honor.
It's -
MS. AL-SHABAZZ: Can I finish my objection?
MR. REED: What is relevant? You khow -
MS. AL-SHABAZZ: Can I finish my objection?
THE COURT: Okay. One at. time, please.
Okay, go ahead.
MS. AL-SHABAZZ: I'm objecting.
It's
irrelevant. If there are a gazillion web masters who
receive e-mails. She testified that you don't e-mail
her personally. I don't understand where the People
are going with this entire line of questions.
MR. REED: Your Honor, at least it's relevant
to the questions that
THE COURT: You know what, People? This
could have been told very differently, maybe, if the
undercover would have went a step further, correct? So
at this point, it is -- he didn't. So I can't
speculate as to what'S going on there. We can't do
that. The fact of the matter is that, you know, maybe
442
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Deft. Malandri - For Defense - Cross(Mr. Reed)
your analyst could have went on there and testify as to
what he saw. You had that person testify. You had a
lot of people that could have
MR. REED: We don't need -- we have the
person whose website it is right on the stand, Your
Honor.
THE COURT: But
MS. AL-SHABAZZ: What?
THE COURT: If you felt that that information
was irrelevant, that's what I'm saying to you, if you
thought it was so important, you had witnesses that
could have provided that information. So at this time
I'm sustaining.
MR. REED: Your Honor, may I be heard for a
moment? What would be the different -- why would it be
more relevant if it went through them rather than
Ms. Malandri?
THE COURT: First of all, if you didn't think
it was important on your case, it's not important now.
MR. REED: It's a witness, Your Honor.
THE COURT: No, no, no.
Sustained.
MR. REED: I just -
THE COURT: Get your thoughts together. You
could take a moment to get your thoughts together. I
443
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Deft. Malandri - For Defense - Cross(Mr. Reed)
don't mind being challenged.
Q Now, Ms. Malandri, you're familiar
MR. REED: I'm sorry, Judge.
THE COURT: It's okay. Go ahead.
Q Ms. Malandri, you testified before that you're
familiar with your site; isn't that right?
A Correct.
Q And you familiar with everything on that site;
isn't that right?
A Correct.
Q So you're familiar that this site offers
assignments dealing with girl-girl work fetish?
MS. AL-SHABAZZ: Same objection. Same
objection. I object to the entire line of question.
What the People are trying to establish, has already
been established.
MR. STRAZZULLO: It's burden shifting.
MR. REED: Your Honor
THE COURT: People, what I'm saying to you,
see where you're headed, but you're missing a question
before you get to that point. So I think that you have
to just take your time because you have your elements
and whatever it is to fulfill, maybe you need to
concentrate on one as in regard to this website. Take
a moment and get your thoughts together because you
I
444
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
have some foundations questions before you get there,
if I let you get there. And since you haven't, that's
why you're not going there.
Q
Ms. Malandri, have you ever received a booking via
this website?
A
Through direct e-mail, no.
Q Have you ever received one from anybody that tried
to contact you through this website?
A No, I have not.
Q So it's your testimony today that in the two or
three years that yourve been -- that you had this website
that nobody has ever tried to contact you?
A They are screened through my agents. They handle
all my bookings.
Q
No matter how you got the booking, did you ever
receive an assignment through somebody contacting you?
A My agent would receive the booking and would
handle it. I would not.
Q And how would your agent receive
A They would receive the e-mails.
Q And then how did you find out about this certain
assignment that - ~
MS. AL-SHABAZZ: Objection. Nobody said she
found out about anything.
Q Did you find out about this assignment after your
445
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
agent received the e-mail?
MS. AL-SHABAZZ: Objection. What assignment
is he talking about?
THE COURT: Sustained. Rephrase.
Q
Have you ever received an assignment through your
agent?
A Of course. It's a legitimate company.
Q And how did the agent receive that assignment?
A Phone calls, e-mails.
Q And after your agent received the assignment, how
did he let you know that there was an assignment out there
for you?
A He made sure that it was through a company. He
did a screening. He would send -- he would make sure there
was a company check prior to sending me to any assignment.
Q And isn't it true that some of those assignments
included fetish girl-girl work?
THE COURT: Overruled, and then you stop.
This is your last question.
Q
And that it's as far as the assignments?
A
I'm sorry. Can you repeat the question.
Q
Isn't it true that some of these assignments
s e s S l o n s ~
included girl-girl work fetish and private
446
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
J
21
22
23
24
25
Deft. Malandri - For Defense - Cross {Mr. Reed)
A
Not private sessions, no.
THE COURT: Okay, you got your answer. Move
on.
And during your conversation with the undercover
Q
on June 20th, 2008, is it true that you agreed to use
cocaine with him?
A No, it is not.
Q
Do you use cocaine at all?
A
No, I don't.
MR. STRAZZULLO: Come on.
MR. REED: No further questions, Your Honor.
MS. AL-SHABAZZ: I have nothing further. The
defense rest.
MR. STRAZZULLO: Thank you, Your Honor.
THE COURT: I'll believe you all need 10
minutes to get your thoughts together.
MR.
REED:
Are we
going to
sum up
now?
I'll
give
you all
10 minutes.
THE
COURT:
Thank
you,
Your Honor.
MR.
REED:
THE
COURT:
Okay.
a recess
taken. )
(Whereupon,
there
is
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
447
- Proceedings
MS. AL-SHABAZZ: May it please the Court, we
stand here now left with just Ms. Malandri, and I
submit to this Court that the People have failed to
prove beyond a reasonable doubt that on June 20th,
2008, Ms. Malandri offered or agreed to have sex with
an undercover police officer.
Your Honor, this case is not about Cassandra
Malandri. It's not about Alexia Moore. It's not about
Falynn Rodriguez. This case is about Lou Posner. It's
prostitution. It's tragic that the People could not
present some evidence to Your Honor to support this
charge. Something simple and as basic as an audio
recording. We know they have it. We know that Det.
Rijos talked.about the different types of audio
recording devices that are available to him. All he
has to do is request one and we wouldn't even be here
today. But he didn't do that. No corroboration
whatsoever. Det. Rijos was not even privy to any of
the conversations that Undercover 2948 claims he had
with Ms. Malandri. So what do we have? We have a case
that depends entirely upon Undercover 2948.
This is a witness who came into this
courtroom and said the main room in this particular
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
448
- Proceedings
club was as light as it is in this courtroom today.
Well, we know from Undercover -- from Oet. Rijos that
that is not the case. We know for a fact that it was
dimly lit. Why would Undercover 2948 say it was well
lit? Why would he say the music was low? In an
attempt to tailor his testimony, to get this Court to
believe that he could see very clearly, and he could
hear very clearly. But the true of the matter is, as
Oet. Rijos said, the lighting was very dim and the
music was very loud.
I submit to the Court that if he can't even
be honest about something so basic as the lighting and
the sound, that he certainly can be trusted when it
comes to the essential elements of this case.
The People put on Undercover 2948. They put
on the website analyst. They submitted to the Court
that Ms. Malandri said, "Contact me through a website."
Again, no corroboration. They didn't go the
step further to actually see if that link on the
website really got to Ms. Malandri. How hard would
that have been for them to do, to just give you that
evidence? But you don't have it. How difficult would
it have been between June 20th, of 2008, to the time
they executed the search warrant in July of
July 17th, almost a month later, for this undercover to
449
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
attempt to even contact Ms. 'Malandri? He didn't do it.
No contact whatsoever. Not an e-mail, not a phone
call. He didn't attempt at all. All you have is him
saying, "That I said I wanted to fuck her for $5,000."
Never did Ms. Malandri suggest that he could fuck her
for $5,000 and, in fact, Ms. Malandri, and I applaud
her, because she didn't have to, but she did, and she
subjected herself to the crucible of cross examination
to show Your Honor that she did not do any of the
things that were alleged by Undercover 2948.
Her testimony was unchallenged. She said
very specifically, "I never agreed to have sex. I
never told him $5,000." It did not happen.
It's the People's burden of proof. The
People must establish beyond a reasonable doubt that
there was an agreement. They haven't done so. I want
to talk about these incidents one at a time.
With respect to the $5,000, they haven't done
it, and I think I've already spoke about that.
With respect to the $300 and the private
room, Ms. Malandri said, "I never said that." But more
importantly, the People want the Court to make a
conclusion their own witness could not reach. When
asked him specifically, "Naked and touch? That doesn't
't?" He said, "No."
Does
imply sexual conduct, does l .
I
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
450
- Proceedings
that mean sexual intercourse?" He said, "No.
1f
And, in
fact, the only touching that had gone on through the
course of this entire evening was on the arms and on
the chest. Non sexual contact. Not on the groin, not
on the genital, not on the buttocks, none of that.
Ms. Malandri testified she gave him an air
dance on the bed. Their genitals weren't even
touching. Maybe that's why he didn't get an erection.
I don't know.
But the Court -- but the People are asking
this Court to conclude that "naked and touch" means
sexual conduct. Again, they have the burden of proof
beyond a reasonable doubt and they've given you
nothing.
I ask the Court to remember that this is a
These men are playing a
strip club. It's a ni
role. They want the Court to believe that they had
four or five drinks that they just carried around or
threw them in the toilet.
I submit that that's not believable because,
to blend
in.
They have
to
like they
said,
they have
in order
to do
make sure
that
they don't
get made.
And
that they
have to act
like patrons.
You
see people
clubs
and
buy drinks
they don't
drink
don't go
to
b ~ c a u s e that would look suspicious, and drinks are not
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
451
- Proceedings
cheap. So if you spend $10 or whatever it will cost
for a drink, you should at least sip it, and they did
agree that they did sip some of those drinks.
This undercover officer testified that after
spending two-and-a-half hours in the club, he goes back
to his command, and he writes this report. That's the
only thing we have. It's the only thing he has to
refresh his recollection about these events. Events
that happened -- where are we, 2010, over a
year-and-a-half ago.
He says he wrote a summary. All the details
are not there. He says he put the important details in
there, but he didn't put something as important as
where this agreement was suppose to be consummated?
nOh, I only put things that are relevant to the offer
and the agreement -- to the agreement. Well, that's
relevant but you didn't put that in there. But you did
put in there a conversation about cocaine and that had
nothing to do with the,agreement. That doesn't make
sense. And I submit to the Court that there was never
a conversation at all about sex or $5,000, never was
there a conversation about there being this
happening at the Hilton Hotel, whether it would be
tomorrow or never worry. He could have said, "You know
take this $200. Here's a little down payment for
452
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
tomorrow." He didn't do that either. He did nothing,
and he wants you to convict Ms. Malandri -- the People
want you to convict Ms. Malandri for prostitution on
the barest of evidence.
I submit to the Court that Ms. Malandri
engages in selling fantasies to men. It's her job.
The People have not established that she sells sex.
She sells the illusion of attainability and nothing
more. It's an illusion just like the People's case.
And I ask after you consider all the evidence
in this case that you return a non guilty verdict on
behalf of Ms. Cassandra Malandri.
Thank you, Judge.
MR. REED: May it please the Court, Your
Honor, the People have proven beyond a reasonable doubt
that Ms. Malandri offered and agreed to offer to have
sexual conduct in exchange for U.S. currency with
Undercover 2948 on the night of June 20th, of 2008.
Now, you heard the undercover testify. You
heard from many witnesses, but you heard from two very
important witnesses. One being the undercover and one
being Ms. Malandri. And you heard the undercover
testify that not just once, not just twice, but several
times that night he had a discussion with Ms. Malandri
about having sex for money. Not just for one fee but,
453
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
once for $300 and once for $5,000 the next day and, I
apologize, the one for $300 was for sexual conduct.
And then you heard from Ms. Malandri, and I
agree with defense counsel. She didn't have to take
the stand and the burden never shifts, but she did, and
therefore you have to examine her testimony and examine
her credibility. And I know you know this, Judge, but
as a matter of law, Ms. Malandri is the only interested
witness in this case. And although this is just a B
misdemeanor, I submit to the Court that it's important
to Ms. Malandri.
And so what this means is, the undercover
gets up and he tells you one version and Ms. Maiandri
gets up and tells you a completely different version as
it relates to the agreements made, and I submit -- and
what that means for you, Judge, is that someone isn't
telling the truth. And I submit to this Court that
__ d)::!"'li'N_t',J'.,..."*,.,"",_",,,'T;i. .tt<-':-'\s;.olO";CO.\ . ..
that person is Ms. Malandri.
Now, when you examined our witnesses, to
begin with our undercover, you have to.examine their
testimony to see how credible they are, and in order to
do that, Your Honor, I suggest that you remember how he
testified. Every time he was asked a question by me,
Ms. Shabazz -- and Ms. AI-Shabazz, I apologize, and
Mr. Moser, he never -- he always answered every
454
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
question. He never said, I refuse to answer a
question."
I submit to this Court that he never
embellished and he never -- he could have said that -
he could have told you that, "Look, Ms. Malandri, she
asked me every night. She kept coming up to me and she
kept saying let's do that. Let's do this thing for
$5,000." He told you that he didn't have a recording
device on him. He knew this wasn't taped. He knew
that there was no way in which he could be impeached
with actual audio of what was actually said, but he
didn't do that, Your Honor. He just said that
Ms. Malandri asked him if he could do five with three
zeros after. He asked her, forgive my language, "I
want to fuck you." And he said that she said, "Can you
do five with three zeros." Prior to that, he said that
she said, "Let's get naked and touch each other in one
of these private rooms." And he just testified that
all Ms. Rodriguez said was, "I'm the only one that
tosses Alexia's salad."
NOw, if he wanted to come in and do this huge
investigation and frame Ms. Malandri and Ms. Rodriguez,
I submit to the Court that he would have come up with a
much better story then that. He could have said that,
"No, Falynn Rodriguez was just as eager as
455
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings -
Ms. Malandri.
1I
Or he could have said, "Ms. Malandri
asked me repeatedly through the night, let's h a ~ e sex.
Let's do this. Call me. I'll give you my number."
That's enough for an agreement. But he didn't, Your
Ronoir. He told you what happened. Why? Because
that's what happened. One moment.
And when he didn't remember things on direct
and on the cross, on the two crosses that he went
through, he told you that he didn't remember. He also
repeated his story. His story never changed. His
testimony never changed. Although as we all sat here
through -- he was on the stand for an entire day and he
repeated the same testimony in tedium. Not only on
direct, but on two crosses, and his testimony stayed
the same on cross as it was on direct.
And again, Your Honor, I remind you there was
testimony that this officer, this Undercover Officer,
No. 2948, has a lot of experience in undercover
operations, over 100 operations.
And I submit to the Court that this
undercover would not make a mistake as to whether or
not an agreement has occurred due to his -
MS. AL-SHABAZZ: Objection. The people
cannot vouch for their witness.
THE COURT: sustained.
456
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
MR. REED: And his testimony is corroborated
by Det. Rijos.
Det. Rijos got on the stand and he went
through the same thing. He told you the same thing
that Undercover 2948 did. He told how close that they
were sitting -- how close the undercover was sitting
with Ms. Malandri and Ms. Rodriguez. He told you that
he observed the dances, and he told you that, you know,
he saw them together at various points of the night.
And he also told you that he never saw Ms. Malandri
without Ms. Rodriguez.
Now, if Det. Rijos wanted to lie, this
case as Ms. Shabazz said during her closing, this
case has been going on for a year-and-a-half now, and
although, the DDS that Mr -- that UC 2948 produced was
very detailed, they had ample time to review it. And
Det. Rijos if he wanted to lie, he could -- I mean if
he wanted to -- there were discrepancies between their
testimony.
I submit that they weren't of any issues of
great importance, but as to the lights and also as to
whether or not there was a Kel device involved. If
they wanted to lie, they would have synchronized their
stories, Your Honor. But they didn't. Why didn't
they? Because they had no reason to, because both of
457
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
them came in here and told the truth. They didn't come
with some big scheme to frame Ms, Malandri with a B
misdemeanor,
I submit to you that if they did want to lie,
then Det. Rijos would have told Your Honor that, "Look,
I overheard everything that they said. And
Ms. Malandri, she was just begging my partner to have
sex with him the next day for money." But he didn't.
He said that he was ghosting, and that he was doing his
job, and he didn't hear it. I submit that that
testimony adds to both of their credibility.
Now, Your Honor, much hay has been made about
the undercover's DDS, in that there were some things
missing from that DDS.
I submit to Your Honor that nothing that was
in the DDS is missing that had to do with any
agreement. Not the fact that he didn't put where the
sexual rendezvous was to take place, not the fact that
he didn't put in the DDS that Ms. Malandri asked him
repeatedly after the second agreement to have sex, or
whether or not he wanted to get a taste for tomorrow.
That had nothing to do with the agreement.
And, as I said, we have to look to where Ms.
Malandri worked. And I do concede that she's not
guilty of prostitution because of the clothes she's
458
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
wearing or the fact that she, as Ms. Shabazz said in
her closing, that she dances or she provides a fantasy
for man; that she straddles them on a bed. But 1
these facts in totality -- all these facts in totality;
the fact that she's dancing on them, the fact that
she's, you know, in a dimly lit room, the fact that she
straddling them, coupled with the undercover's
testimony, can go to her intent, Your Honor.
And the fact that there is a website, that
website is in evidence, and it does say, "If you want
to contact me, e-mail m e ~ " Who knows? Through a web
master or whatever. It does say that, "If you want to
contact me just e-mail me through this website." And
that's exactly what the undercover told you during his
direct and that's exactly what he told you during the
two crosses and some of the recross. That that is what
he was told my Ms. Malandri.
And I submit to Your Honor that this
documented evidence, this website, is where she is
implicitly soliciting sex. That's our position.
And, of course, Your Honor, like I said, this
is not a case where you can be out and make
prostitution offers or agreements. Obviously, she
can't get on her website and say, "Look call me for sex
and here's' my number." That would be illegal and it
459
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
wouldn't be smart because she would have been in front
of somebody like you a long time ago.
MS, AL-SHABAZZ: Objection.
MR. REED: It would have been against the
law.
However -- but in her website where she does
say, "Contact me if" -- I mean, lYE-mail me if you want
to contact me," that.' s the way that she intends to
engage the undercover that she made the agreement with,
Your Honor.
And if you look at her, at Ms. Malandri's
testimony, I submit that -- I mean, I concede that she
didn't have to testify, but you have to evaluate her
testimony, and when you evaluate her testimony, you
look that she didn't even give you her version of the
facts. She said -- she answered Ms. Shabazz's question
"Yes or no." She didn't tell you exactly what
happened. She was led through her testimony and she
certainly didn't tell you her version of what happened.
She just told you, "Look -
MS. AL-SHABAZZ: Objection. This is burden
shifting. She has no obligation to say anything.
MR. REED: I just said that.
MS. My objection is so noted for
the record. It's burden shifting. It's not fair
460
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
comment even.
THE COURT: It's argument. Overruled.
MR. REED: Okay.
She just answered "Yes or no." She didn't
give you her version of the story for the facts -
mean her version of the story. But our undercover did.
Now, during Ms. Shabazz's
MS. AL-SHABAZZ: Again, objection. Burden
shifting.
MR. REED: During Ms. Shabazz's closing, she
said that, "Look there was never -- during -- not
only" -- during some of the argument during this trial
there's been a lot that has been made that there was
never -- that the agreement was never consummated,
that, you know, the undercover never went on the
website and actually e-mailed somebody to make sure
that this could get to Ms. Malandri. Our office didn't
use the e-mail on that website to see whether or not it
actually worked. But, Your Honor, under the law, we
don't need to. Pursuant to the statutory language
itself, which we already had litigated in depth, the
statute states that, "A person can be guilty of
prostitution if that person offers or agrees to sex for
money." And I remind Your Honor that an offer of sex
is simply that. It doesn't require any details of what
I
461
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
that sex has to be. It just has to be sexual conduct.
It doesn't have to say where to take place, what kind
of sex they're going to have, w h ~ t they're going to be
wearing when they're going to have sex, or what time
it's takes place. All there has to be, under the law,
is simply an offer or an agreement. And in this case,
Your Honor, it's the People's position that
Ms. Malandri when she offered to get naked with the
undercover for $300 for 15 minutes that was her offer,
and then when she said, "Could you do five with three
zeros after it," that was an agreement. So she's -
she's been -- we've proven our case beyond a reasonable
doubt twice, and not just twice, there are subsequent
times that the undercover told you that Ms. Malandri
approached him, asking him, if wanted to get a taste of
tomorrow.
And there's ample case law supporting this,
Your Honor, which we've already given to you.
And also, as per the agreement, we again
point Your Honor to People vs. Corona which says, "An
agreement is enough even if the undercover raises the
issue of sex first and the defendants don't."
And, finally, if you look at the evidence
that shows that.there was an agreement; I'll just run
through it with you again, the undercover testified
462
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
that Ms. Malandri said, "$300 for 15 minutes in a
private room. Get naked and touch each other," while
looking at his groin.
And when they had the second dance he said,
in response to the undercover's quote, "I want to fuck
you," she said, "Can you do a five with three zeros."
And then she said, which we don't need, "Contact me
through my website." And at the same time the
Undercover No.2, the ghost, observed them being more
friendly post this conversation. And this defendant,
Ms. Malandri, approached the undercover three more
times after the two agreements were made and asked him
repeatedly, if they wanted to preview tomorrow.
Now, if you take any of these facts alone,
the two conversations and also the subsequent times
that Ms. Malandri came up to the undercover, I could
see that that would be it wouldn't be that,much
evidence. But in totality, Your Honor, it's the
People's position that that's more than enough to prove
beyond a reasonable doubt that Ms. Malandri is guilty
of prostitution, in violation of Penal Law 230.00, in
that she offered and agreed several times to have sex
with Undercover 2948 in exchange for money.
Thank you. Excuse me, Your Honor. Sexual
conduct and sex.
463
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
The Court will not render its verdict today.
I have just obtained minutes and hope to receive some
more from the court reporter. So I'm going to put this
case over with a verdict at your convenience.
MS. AL-SHABAZZ: How much time will the Court
need?
THE COURT: I'd say probably after Monday
afternoon, Tuesday afternoon, sometime after that. I'm
actually in Part A, so -
MS. AL-SHABAZZ: On Monday?
THE COURT: The whole week.
MS. AL-SHABAZZ: Judge, is it a calendar day
for you -- oh, it's A, right?
THE COURT: I don't believe there are any
Jury Parts next week.
MR. REED: Judge, I have
THE COURT: You can't do Monday or Tuesday?
MR. REED: I can't do Monday. Tuesday is
better or Wednesday.
THE COURT: Either date. Whatever. Work it
out.
MR. STRAZZULLO; We'll do Tuesday, Your
Honor.
THE COURT: At 1:00.
464
l
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- Proceedings
MR. STRAZZULLO: At 1:00 o'clock?
THE COURT: Yes.
MR. STRAZZULLO: Part A?
THE COURT: Yes.
MR. STRAZZULLO: Thank you.
MS. AL-SHABAZZ: Thank you, Your Honor.
THE COURT: Okay. Have a nice weekend.
MR. STRAZZULLO: Thank you, Your Honor. Have
a nice weekend.
THE COURT: Have a good weekend.
*
* * * *
Certified to be a true and accurate record of
the within
J-1
ada
)__
IDA TEJADA
Official Court Reporter

Malandri & Rodriguez Stripper Trial - Criminal Court of New York City - Transcript Jan 22 2010

Încărcat de

Informații document

Titlu original

Drepturi de autor

Formate disponibile

Partajați acest document

Partajați sau inserați document

Opțiuni de partajare

Vi se pare util acest document?

Este necorespunzător acest conținut?

Drepturi de autor:

Formate disponibile

Malandri & Rodriguez Stripper Trial - Criminal Court of New York City - Transcript Jan 22 2010

Încărcat de

Drepturi de autor:

Formate disponibile

1

S-ar putea să vă placă și