18-764
United States v. McCourty

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT
                                   SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 27th day of September , two thousand nineteen.

PRESENT:
                 ROBERT A. KATZMANN,
                      Chief Judge,
                 RICHARD C. WESLEY,
                 JOSEPH F. BIANCO,
                      Circuit Judges.


UNITED STATES OF AMERICA,

                      Appellee,

                 v.                                             No. 18-764

PETER MCCOURTY,

                      Defendant-Appellant.


 For Defendant-Appellant:                      ALLEGRA GLASHAUSSER, Federal Defenders
                                               of New York, New York, NY.

 For Appellee:                                 ELIZABETH MACCHIAVERNA, David C. James
                                               (on the brief), Assistant United States
                                               Attorneys, for Richard C. Donoghue, United
                                                      States Attorney for the Eastern District of
                                                      New York, Brooklyn, NY.

       Appeal from a judgment of the United States District Court for the Eastern District of New

York (Matsumoto, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Defendant-Appellant Peter McCourty appeals from the March 16, 2018 judgment of

conviction of the United States District Court for the Eastern District of New York (Matsumoto,

J.) revoking his supervised release and sentencing him to 24 months’ imprisonment. McCourty

argues (1) that the district court abused its discretion by admitting hearsay evidence at his violation

of supervised release (“VOSR”) hearing and (2) that there was insufficient evidence to support the

court’s conclusion that he had violated the terms of his supervised release by committing three

New York State misdemeanors: assault in the third degree, menacing in the third degree, and

endangering the welfare of a child under the age of seventeen. All three charges arose from

McCourty’s February 11, 2017 arrest. According to McCourty’s girlfriend, “K.B.,” who made the

911 call that precipitated the arrest, McCourty punched her in the face, kicked and dragged her out

of a car in which they were transporting their child, and continued to hit her in the street. We

assume the parties’ familiarity with the underlying facts, the procedural history of the case, and

the issues on appeal.

I.     Admission of Hearsay

       McCourty first challenges the district court’s admission of K.B.’s out-of-court statements

to the arresting officer. The Government did not call K.B., and instead sought to admit her

statements to an officer who responded to her 911 call, both through the officer’s testimony and in




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the Domestic Incident Report (“DIR”) following the arrest. We agree with the district court that

there was good cause to admit the statements.

       When the Government requests admission of a hearsay statement at a VOSR hearing that

does not fall within one of the established hearsay exceptions, Federal Rule of Criminal Procedure

32.1(b)(2)(C) and the Due Process Clause require “the court to determine whether good cause

exists to deny the defendant the opportunity to confront the adverse witness.” United States v.

Williams, 

, 45 (2d Cir. 2006); see also Morrissey v. Brewer, 

, 489 (1972).1

“In making that determination, the court must balance . . . the defendant’s interest in confronting

the declarant, against . . . the government’s reasons for not producing the witness and the reliability

of the proffered hearsay.” 

. We review a district court’s balancing of the

Rule 32.1 factors for abuse of discretion. 

       The Government had good reasons for relying on K.B.’s out-of-court statements. The

Government demonstrated that it had made several attempts to contact K.B. It was only after

multiple efforts—in person, by phone, by letter—that the Government was eventually able to reach

her. She ultimately refused to cooperate. It was reasonable for the court to conclude that K.B.

refused to testify because she “was reasonably in fear of . . . McCourty, given a long history of

physical abuse by [McCourty] against” her. Appellant’s App. at 160. There was ample evidence

of this fear, including repeated reports of domestic violence spanning over a decade, her apparent

pleas with the 911 operator on February 11 to send an officer to the scene quickly because

McCourty was coming back towards her, and K.B.’s complaint to the police on February 15,

2017—four days after the February 11 incident—that McCourty was “outside her home and



       1
         Unless otherwise indicated, in quoting cases, we omit all internal citations, quotation
marks, footnotes, and alterations.

                                                  3
harassing and calling her in violation of [an] order of protection,” making her afraid to leave her

home, Appellant’s App. at 118.

       The hearsay evidence was reliable. K.B.’s near-contemporaneous statements made to the

911 operator and then at the hospital are consistent with the statements at issue here.2 Those

statements are corroborated by McCourty and her child’s statement to the arresting officer that

McCourty punched her in the face, the arresting officer’s description of K.B.’s injuries in the DIR,

and by photographs that showed injuries consistent with K.B.’s account of what happened that

night, including redness, swelling, and a laceration by her right eye. McCourty argues that K.B.

had a motive to lie to law enforcement about the February 11 incident: she “may have been trying

to retaliate against a partner with whom she had a dysfunctional relationship.” Appellant’s Br. at

21. Even if reasonable minds could disagree over K.B.’s motives for mentioning McCourty’s

criminal history to the 911 operator, her statement does not render the district court’s decision to

admit the hearsay testimony an abuse of discretion.

        A criminal defendant always has a substantial interest in cross-examining those whose

statements would be used to support his conviction. That interest, however, is somewhat

diminished when the Government’s case does not rest solely on otherwise inadmissible hearsay.

As discussed above, K.B.’s statements in the 911 call, admitted as an excited utterance, statements

to her doctor, admitted as statements made for medical diagnosis or treatment, and extensive

evidence of her injuries all support the conviction. Moreover, the Government acted reasonably in

not calling K.B. given that she at first avoided the Government’s attempts to contact her and then

ultimately refused to testify. See United States v. Carthen, 

, 100 (2d Cir. 2012). Finally,




       2
        These statements satisfied hearsay exceptions (excited utterances and statements made
for medical diagnosis or treatment) and McCourty does not challenge their admission on appeal.
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the hearsay evidence, as 

, was reliable as a whole. The district court did not abuse

its discretion in balancing the interests under Rule 32.1(b).

       We have noted the “well recognized difficulty of securing cooperation of domestic

violence victims and that [the] most common reason for dismissal of domestic violence crimes is

non-cooperation of victims,” and so have held that, as a general matter, there is good cause

justifying the absence of a declarant when a defendant has a “history of violent conduct that makes

reprisal against the declarant a possibility.” 

. That is the case here. The

district court therefore did not abuse its discretion in admitting K.B.’s hearsay statements.

II.    Sufficiency of the Evidence

       McCourty next argues that the Government’s evidence was insufficient to prove the New

York state crimes of assault in the third degree, menacing in the third degree, and acting in a

manner to injure a child less than 17 years of age. We review a district court’s finding of a

supervised release violation for abuse of discretion. United States v. Spencer, 

, 520

(2d Cir. 2011).

       A.         Assault in the Third Degree

       Under New York law, a person is guilty of third-degree assault “when . . . [w]ith intent to

cause physical injury to another person, he causes such injury to such person or to a third person.”

N.Y. Penal Law § 120.00(1). “Physical injury” is defined as “impairment of physical condition or

substantial pain.” N.Y. Penal Law § 10.00(9). The only question raised on appeal is whether

McCourty caused “substantial pain.” He did.

       While “slight or trivial pain” is insufficient to meet the “substantial pain” threshold, the

“[p]ain need not, however, be severe or intense to be substantial.” People v. Chiddick, 

, 447 (2007). “Each case ultimately turns upon the facts unique thereto, with a variety of

relevant factors, including, among others, the injury viewed objectively, the victim’s subjective

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description of the injury and her pain, and whether the victim sought medical treatment.” People

v. Rivera, 

, 588 (3d Dep’t 2007). Perhaps the most important factual aspect to

support a finding of substantial pain is the injury the defendant inflicted, viewed objectively.

.

       A punch to the face—even one—is “an experience that would normally be expected to

bring with it more than a little pain.” 

punches to the face and being forcibly

removed from a car, viewed objectively, would cause substantial pain. Hospital records reflect that

the victim had a facial contusion and swelling on the right side of her face, and the responding

officer observed her injuries, which showed bruising on K.B.’s face. The district court did not err,

much less abuse its discretion, in finding by a preponderance of the evidence that McCourty caused

substantial pain.

       B.      Menacing in the Third Degree

       Under New York law, a person is guilty of third-degree menacing “when, by physical

menace, he or she intentionally places or attempts to place another person in fear of death,

imminent serious physical injury or physical injury.” N.Y. Penal Law § 120.15. There must be

“evidence of . . . threatening behavior before, after, or otherwise separate from the sudden attack”

to support a guilty verdict of menacing in the third degree. In re Shenay W., 

, 576

(1st Dep’t 2009). McCourty argues that there is no evidence “separate” from the assault that he

threatened K.B. Appellant’s Br. at 29. He is wrong.

       The district court correctly found that kicking K.B. out of a car, getting out, and continuing

to hit her constitutes threatening behavior “separate” from the “sudden attack” of the first punch

that was thrown after McCourty and K.B. began to argue. Moreover, after the assault, K.B. called

911 and entreated the 911 operator to send an officer quickly because McCourty was returning to

the scene. He was coming back toward her, which, in this case, constituted threatening behavior
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given that McCourty had just punched her repeatedly, pushed her out of a car, and continued to hit

her on the street. Again, the district did not err, much less abuse its discretion, in finding by a

preponderance of the evidence that McCourty exhibited threatening behavior and K.B. was scared.

       C.      Acting in Manner to Injure a Child Less than 17 Years of Age

       Under New York law, a person is guilty of endangering the welfare of a child when, “[h]e

or she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare

of a child less than seventeen years old.” N.Y. Penal Law § 260.10(1). A defendant need not

actually harm a child, “rather, a defendant must simply be aware that the conduct may likely result

in harm to a child, whether directed at the child or not.” People v. Johnson, 

, 372

(2000). McCourty argues that the February 11 incident “was not sufficiently serious to be

endangering under New York law.” Appellant’s Br. at 29. Again, we disagree.

       The New York Court of Appeals has recognized that “[t]he adverse effects of domestic

violence on children have been well documented over the past two decades and have been

recognized by all branches of our government in New York,” and so held that a “defendant who

performs a significant act of domestic violence against a mother in the presence of a child” may

be found “guilty of endangering the welfare of that child,” depending on the specific facts of that

case. 

. Following that case, intermediate appellate courts have affirmed

convictions when the defendant “repeatedly struck the victim directly in the presence of the child,

who attempted to intervene on behalf of her mother,” People v. Powell, 

, 1176

(3d Dep’t 2015), and engaged in “a physical dispute in the presence of the children,” and “refused

to leave the premises and blocked the way so that the victim’s sister could not leave with the

children,” People v. Bray, 

, 1233 (3d Dep’t 2007). On the other hand, they have

rejected convictions when the evidence established only “that defendant pushed his wife to the



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ground” once in front of the child. People v. Hosue, 

, 55 (App Term, 2d Dep’t, 11th

& 13th Jud Dists 2017).

       McCourty argues that his conduct was unlikely to endanger his child’s welfare because his

child told the arresting officer that “McCourty hit [K.B.] only once.” Appellant’s Br. at 20. That

is not what the son said. The officer testified that the son “told [him] that they were in the car and

that Mr. McCourty did punch his mom in the face.” Appellant’s App. at 72. But he did not say that

McCourty hit his mother “only once.” And other credible evidence indicated that McCourty not

only punched K.B. in the face in the car, but also kicked her out of the car, and then continued to

hit her outside, all in view of his thirteen-year-old son, in the middle of the night on the side of a

highway. McCourty also notes that the arresting officer said the child appeared calm when

interviewed. But the child need not actually suffer harm to support a conviction. 

.

       The district court did not abuse its discretion in finding by a preponderance of the evidence

that McCourty was aware that beating his child’s mother in front of him would likely endanger his

son’s mental and moral welfare, and that the incident was therefore sufficiently serious to support

the conviction.

       Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, CLERK




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