New York Appellate Division Reports

PEOPLE v. KIMES, 8251 [1st Dept 12-7-2006] 2006 NY Slip Op
09134 The People of the State of New York, Respondent, v
Sante Kimes, Defendant-Appellant. 8251. Appellate Division of
the Supreme Court of New York, First Department.
Decided: December 7, 2006.

Defendant appeals from a judgment of the Supreme Court, New
York County (Herbert I. Altman, J. at pretrial motions;
Rena K. Uviller, J. at pretrial motions, jury trial and
sentence), rendered June 27, 2000, convicting her of murder
in the second degree (three counts), robbery in the first
degree, burglary in the first degree, criminal possession of
a weapon in the second degree (two counts), criminal
possession of a weapon in the third degree (two counts),
criminal possession of stolen property in the third degree,
forgery in the second degree (sixteen counts), criminal
possession of a forged instrument in the second degree,
eavesdropping (twenty-nine counts), conspiracy in the
fourth degree, and attempted grand larceny in the first
degree, and imposing sentence.

Richard M. Greenberg, Office of the Appellate Defender, New
York (Joseph M. Nursey of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Hilary
Hassler and Eleanor J. Ostrow of counsel), for respondent.

JR., JJ.


The arrest and trial of Sante Kimes and her son, Kenneth, on
charges of murdering a wealthy widow in order to defraud
her of a multi-million dollar Upper East Side townhouse
captured the attention of the country. From the moment
82-year-old Irene Silverman disappeared through the
eventual trial and convictions for her murder, the two
modern day grifters were the subjects of intense media
scrutiny in newspapers, newsmagazines and on television
news shows.They were the subjects of at least one
made-for-TV movie. Three books were published about the
duo, described by one popular weekly magazine as a
“one-family crime tsunami linked to a cross-country trail
of cons, insurance scams, arson, missing persons and
murder.”[fn1] A book by Reuters reporter, Jeanne King
presumed to encapsulate their unsavory story in its title,
“Dead End: The Crime Story of the Decade Murder, Incest and
High-Tech Thievery.”[fn2]

Even though Silverman’s body was not found, the People
brought mother and son to trial for murder on
circumstantial evidence that gave new life to the
traditional maxim that circumstantial proof will often
paint a far stronger picture of guilt than direct evidence.
Subsequently, Kimes and her son were found guilty of
multiple counts of murder in the second degree, robbery and
burglary in the first degree, criminal possession of a
weapon in the second and third degrees, sixteen counts of
forgery in the second degree, criminal possession of a
forged instrument in the second degree, twenty-nine counts
of eavesdropping, criminal possession of stolen property in
the third degree, conspiracy in the fourth degree and
attempted grand larceny in the first degree. Kimes and her
son were sentenced on the same date to aggregate terms of
120 years to life. Sante Kimes now appeals from the

On appeal, Kimes challenges the legal sufficiency of her
murder conviction; the court’s pre-trial Huntley, Batson
and Sandoval rulings and the denial of her request for a
Darden hearing; the admission of certain evidence at trial
including incriminating notebooks; certain restrictions on
the cross-examination of prosecution witnesses; the
discharge of a sick juror; the adequacy of the court’s
inquiry into a claim of juror misconduct; that the trial
court overlooked a possible Brady violation; that one of
her lawyers had a conflict of interest; that the court
interfered with her right to counsel by suspending her
jailhouse telephone privileges; and that she was deprived of
her right to be present at a critical stage of the

The Legal Sufficiency of the Murder Conviction

At the outset, we note that Kimes does not challenge the
sufficiency of the evidence underlying the majority of her
convictions evidently recognizing that the counts of
conspiracy to steal Silverman’s home and the attempted
theft of it were proven overwhelmingly by both direct and
circumstantial evidence. On appeal, Kimes challenges the
legal sufficiency only of her convictions for murder, as
well as burglary and robbery in the first degree; each of
which required a showing that she caused, at least,
physical injury to Irene Silverman.

Kimes asserts that there is no physical nor forensic
evidence that either Kimes herself or acting in concert
with her son inflicted any physical injury on Ms.
Silverman, or that she was the last person to see Silverman
before her disappearance. She also asserts that there were
no witnesses who observed

Ms. Silverman in the presence of either Kimes or her son on
the day of her disappearance. She further asserts that
according to the trial testimony, the last witness to see
Ms. Silverman was her employee Martha Rivera who was also
the person who discovered her missing on the evening of
July 5, 1998. Additionally, Kimes correctly maintains that
there was no physical evidence of Ms. Silverman’s presence
in the car that son, Kenneth Kimes drove on the day of
Silverman’s disappearance, or in the apartment (hereinafter
referred to as “Apartment 1B”) which Kenneth rented in
Silverman’s townhouse.

Kimes acknowledges, however, that certain evidence supported
a finding of motive for homicide. She also concedes that
homicide may be proved solely by circumstantial evidence.
See People v. Bierenbaum, 301 A.D.2d 119, 748 N.Y.S.2d 563
(1st. Dept. 2002), lv. denied, 99 N.Y.2d 626, 760 N.Y.S.2d
107, 790 N.E.2d 281 (2003), cert. denied, 540 U.S. 821, 124
S.C. 134, 157 LED.2d 40 (2003).

In assessing the legal sufficiency of trial evidence our
standard of review is that while viewing the evidence in a
light most favorable to the People, we must determine
whether the guilty verdict is based on any valid line of
reasoning and permissible inferences which could lead a
rational person to the conclusion reached by the fact finder
at trial. See id. at 131, citing People v. Williams, 84
N.Y.2d 925, 926, 620 N.Y.S.2d 811, 811, 644 N.E.2d 1367,
1367 (1994).

The testimony and evidence at trial revealed the following:

In 1998, Silverman owned, and lived in, an $8 million

townhouse on East 65th Street between Madison and Fifth
Avenues; she rented apartments within the townhouse to
business executives and patrons of the arts on short-term
visits to the City. She was aided by a staff of employees.
She kept large sums of cash in her personal apartment on
the first floor and invariably carried with her a large and
readily identifiable set of keys to all the townhouse doors.

In the Spring of 1998, Silverman was in perfect mental and
physical health. She left the townhouse infrequently and
only in the company of a staff member; she maintained an
active social life by entertaining her many friends at the
townhouse. She was financially secure. The townhouse was
Silverman’s pride and joy. She had created an arts
foundation in honor of her deceased mother and bequeathed
the townhouse and its contents to the foundation upon her

Kimes and her son were in significantly different
circumstances. From 1994, after Kenneth Kimes Sr. died,
Kimes and her son urged various people in their employ
(whom they recruited from homeless shelters or by
advertising on Salvation Army bulletin boards) to secure
personal identification documents for themselves. Over the
course of time, those documents were stolen from each
employee. In March 1998, Kimes and her son passed a bad
check to steal a Lincoln Town Car from a Utah car dealer.
At the same time, they contacted Stanley Patterson, who
helped them relocate to California and sold them three
guns, including a 9 millimeter Glock and a .22 caliber

In April 1998, Kimes and son relocated to Florida where, as
the evidence indicates, they hatched their scheme to murder
Silverman in order to steal the townhouse from her. Kimes,
using an alias contacted a Florida title company, confirmed
that Irene Silverman was the sole owner of the Manhattan
property at 20 East 65th Street and that the property was
free of liens. Shortly thereafter, they stole a number of
identification cards from Dr. Tony Tsoukas.

In May 1998, they made telephone contact with Silverman, in
a bid to have Kenneth lease an apartment from her. Kimes,
posing as “Ava Guerra,” dropped the name of Silverman’s
friend, Rudy Vaccari, and managed to secure Apartment 1B
for lease to Kenneth under the guise of “Manny Guerrin.”
Silverman’s business manager, Valerie McLeod, arranged to
have “Manny” move in Monday, June 15.

On or about Saturday, June 13, Kimes, her son and Jose
Alvarez, an employee of the Kimeses, loaded up the stolen
Lincoln in Florida and headed for Silverman’s townhouse in
New York City. As they drove through New Jersey, Kenneth
pointed out a grassy spot off the highway and remarked to
his mother that it would be a “perfect place to dump a

Although Kenneth Kimes arrived at the townhouse a day
earlier than planned, Silverman and Rivera allowed him to
move into Apartment 1B. Silverman was immediately
suspicious of “Manny” and stated that “he smells like
jail.” Unbeknownst to them, Kimes moved into the apartment
with her son. On Monday morning, Kenneth left the Lincoln in
a local parking garage.

Over the course of the next few weeks, Kimes and her son set
up eavesdropping devices on Silverman’s telephone line, and
Kenneth questioned her house staff in an effort to learn as
much as they could about Silverman and her household
routines and schedules.

On June 18, a friend of Kenneth’s visited him and Kimes in
their apartment at Silverman’s townhouse. Kimes confided
that she and Kenneth were thinking of buying the building.
Over the course of the next week, “Manny” met with Valerie
and tried to learn Silverman’s social security number from
her. Tensions in the household continued to mount between
Silverman and “Manny,” and Silverman resolved that he could
not stay there after all. Meanwhile, Kimes and son gathered
property transfer forms, including a deed of sale which
would be needed for the fraudulent transfer of Silverman’s
townhouse. For the fraud to pass muster, however, they
needed to obtain Silverman’s social security number, and
Kimes made concerted efforts to obtain it.

Kimes and son then forged Silverman’s signature on the deed
of sale for the townhouse and began scouting for a notary
who would authenticate the forged signature. One notary
public who came to Apartment 1B was greeted by the sight of
Kimes wearing a nightcap and nightgown posing as a
bedridden Silverman. This notary refused to notarize
Silverman’s signature on the deed.

On July 2, 1998, Kenneth brought another notary, Noelle
Sweeney, to Apartment 1B. Once again, Kimes posed as an
infirm Silverman, donning a frilly nightgown and a nightcap
over a red wig. Although Sweeney did not actually see the
woman sign the deed, Sweeney notarized the Silverman
signature on the document. Kenneth signed another real
estate document, and Sweeney notarized that signature as

Kimes and son began recruiting people, including Stanley
Patterson, to manage the townhouse once they completed the
fraudulent transfer of ownership and disposed of Silverman.
Unbeknownst to them, however, Patterson was already
cooperating with law enforcement efforts to find Kimes and
her son in connection with a Utah warrant issued for the
stolen Lincoln. Patterson agreed to meet the duo in New York
on Sunday, July 5, and he informed the authorities about

In the meantime, posing as John Kline, Kenneth had a check
sent for $8,000 from an off-shore account held in the name
of The Atlantis Group, a fictitious company that Kenneth
had set up in March solely for the purpose of the
fraudulent transfer. Then, posing as “Manny,” he and Kimes
tendered the check for $8,000 to Chase Manhattan Bank in
order to receive two certified bank checks, payable to the
New York City Department of Finance, to cover the transfer
and property taxes on the sale of the townhouse.

On Friday, July 3, “Manny” confirmed with Silverman’s
housekeeper that the only people who would be in the
townhouse that Sunday were Silverman and Martha Rivera, who
stayed at the townhouse on the weekends. On Saturday, July
4, Silverman directed Jeff Feig, the building manager, to
serve “Manny” with a letter of eviction on Monday morning.
During a July 4 dinner party at the townhouse, Silverman
confided in close friends, that she planned to evict
“Manny” on Monday.

On the morning of Sunday, July 5, Rivera left Silverman
alone in her office at the townhouse at 11:45 a.m. Over the
course of the next several hours, Rivera did not hear from
Silverman and assumed she was napping. Between 2:30 and
4:00 P.M., Rivera had two “odd” telephone conversations
with “Manny” and a third telephone conversation with a
woman who advised her to return to her own home and to take
Silverman’s dog with her.

At 4:42 p.m., Rivera went to Silverman’s apartment, banged
on the door but got no answer. The police were then
summoned. Silverman was not in the apartment, and the
stacks of cash she kept in her office closet were also

With police assistance, the townhouse was searched but
Silverman was nowhere to be found. With the police in tow,
friends who had arrived to help with the search then
entered “Manny’s” locked apartment. “Manny’s” belongings
were gone, as were a large pillow and comforter missing
from the bed. However, he had left behind an opened roll of
duct tape, a box of 42-gallon trash bags with four bags
missing, and a shower curtain without its liner.

Meanwhile, federal agents of the fugitive task force were
planning to arrest Kimes and her son with the help of
Stanley Patterson. On Sunday July 5, at 11:00 a.m.,
Patterson, accompanied by agents, had arrived at the Hilton
Hotel, where he was supposed to meet mother and son. At
about 11:30 a.m., Kimes called Patterson at the Hilton to
tell him that she and her son were having car trouble on
the Garden State Parkway and would be delayed. Before
meeting Patterson, Kimes checked a black duffel bag at the
Plaza Hotel. At 5:00 p.m., she met Patterson at the Hilton
Hotel, where she instructed him on his duties as the new
manager of the townhouse. At 6:40 p.m., Kenneth parked the
stolen Lincoln at a garage on West 44th Street, after which
he joined his mother and Patterson near the Hilton Hotel.
At 7:20 p.m., agents arrested Kimes and her son on the Utah

The federal task force members, unaware of Silverman’s
disappearance, processed both Kimes and son on the Utah
warrant. Kenneth had identification in the name “Manuel
Guerrero” and numerous documents in the name “Irene
Silverman.” He had a knife and brass knuckles on his
person; he also had a parking stub from a garage and what
turned out to be Silverman’s personal set of townhouse
keys. Kimes’s black vinyl bag contained more than $10,000
in cash and a host of documents bearing Silverman’s name,
and a surgical glove.

That same night, one of the federal agents traced the
parking stub recovered from Kenneth Kimes to the stolen
Lincoln. The agent impounded the vehicle and brought it to
FBI headquarters. He then learned that Silverman was
missing, and he informed the NYPD about the arrest.
Subsequently, Detective Thomas Hackett spoke with Kimes to
ascertain Silverman’s whereabouts. Kimes denied knowing
Silverman, and suggested that perhaps the missing woman was
“out walking her dog.” Hackett searched Kimes’s bag and
found documents including a claim check for the Plaza

A search of the back seat of the Lincoln revealed
incriminating documents in Silverman’s name, blank legal
forms (a will and a quitclaim deed), notebooks and other
items. The items included a can of mace, handcuffs, a jar
of sedatives, rubber gloves, black garbage bags, an empty
stun gun box and semiautomatic handgun with ammunition. The
trunk, in contrast, contained only an empty duffel bag,
large enough to hold the body of a six-foot-tall
individual. Detectives also lifted prints in Apartments 1A
and 1B. From Apartment 1B they recovered two rolls of duct
tape, some discarded duct tape, a shower curtain, an open
box of heavy duty garbage bags, and an unopened package of

In the meantime, Lawrence Frost, an investigator employed by
Kimes’s attorney went to the Plaza Hotel and retrieved the
duffel bag Kimes had checked there on July 5. After
examining its contents, which included a loaded Baretta,
the investigator stored the bag at his brother’s place of
business. Detectives immediately served the investigator
with a subpoena for the bag and, shortly thereafter, had
the bag in their custody.

The duffel bag’s contents were inventoried at the District
Attorney’s Office in the presence of the defense attorneys.
The bag contained the loaded .22 caliber Baretta and
numerous incriminating pieces of evidence. Among those
items was a folder entitled “The Final Dynasty,” which
included the notarized deed, notarized transfer tax form,
and all the other documents needed to finalize the theft of
Silverman’s townhouse.

On July 24 and September 10, 1998, the police conducted
lineups. The fingerprints of Kimes and her son were found
in and around Apartment 1B and on a variety of documents
recovered from the Lincoln. Silverman’s signatures on all
of the documents in the “Final Dynasty” folder, including
the deed and the transfer tax form, were not genuine
according to John Osborn, a forensic document examiner. In
several instances, the signature appeared to be traced from
the June 14 rental receipt which Silverman had signed and
given to Kenneth.

Substantial uncontroverted testimony demonstrated that
Silverman was a creature of habit. She had not slept away
from her house in more than fifteen years. She rarely left
the house and when she did, she was always accompanied by
one of her staff members. Further, the evidence
demonstrated that Silverman was healthy and maintained many
ongoing social relationships. She was not an Alzheimer’s
patient who could have wandered off. In fact, the evidence
shows that the night before her death, Silverman made plans
to see two of her close friends within a week. She also
planned to have her staff on hand on the following Monday
morning in order to evict Kenneth Kimes. The fact that
Silverman disappeared without a trace on a quiet Sunday
morning and was not found despite intensive efforts by the
police, strongly pointed to the conclusion that Silverman
did not disappear voluntarily and was a victim of foul

The evidence that Kimes and her son had a motive to kill
Silverman is similarly compelling. The evidence shows that
Kimes and her son wanted Silverman’s house; that Silverman
would have never willingly given up the house to them; and
that Silverman had plans to leave the house to a charitable
foundation she had established in memory of her mother. The
directors of the foundation would not benefit personally
from Silverman’s death. However, Kimes and her son would
benefit from her demise. They had arranged for transfer of
the townhouse to their shell corporation. However they
could not assume full control of the property and reap the
benefits of the townhouse if Silverman were still alive.
Silverman, although aging, was in full control of everything
that occurred within the townhouse. Kimes and her son knew
Silverman would not allow them to take over her townhouse
so long as she was alive. Based on the foregoing evidence,
therefore, a jury could rationally conclude that defendant
and her son had a motive to kill Silverman.

However, more than motive was established by the evidence
introduced at trial. A jury could also rationally conclude
that Kimes and her son had the opportunity as well as the
means to kill Silverman. Martha Rivera testified that she
last saw Silverman at 11:45 a.m. on July 5 and that she
realized that Silverman was missing at 4:45 p.m. that same
day. Cell phone records permit the inference that Kimes and
her son were at 20 East 65th Street on July 5. The records
show two calls made from their cell phone to the Plaza
Hotel. Those calls were made from inside the townhouse or
within the immediate vicinity of the townhouse at 11:06 and
11:26 a.m. The testimony demonstrates that at the time of
Silverman’s disappearance, the only person at the townhouse
other than Kimes and her son was Rivera. The testimony
reveals that Rivera was busy with chores from 11:45 a.m.
onward and that while she did her chores, loud music was
playing. The motive of Kimes and her son to murder
Silverman coupled with their exclusive opportunity to do so
on July 5 could easily lead a rational finder of fact to
find them guilty of the murder of Silverman.

Moreover, evidence established that Kimes and her son were
also well equipped to murder Silverman. Various instruments
that would assist in the murder and disposal of a person
were found in their car and in the bag that had been
checked at the Plaza Hotel. These instruments included but
are not limited to two loaded guns, an empty stun gun box,
drugs, syringes, large heavy duffel bags, duct tape and
masks. Further evidence was found within Apartment 1B such
as an open roll of duct tape, bearing Kenneth Kimes’s
prints, four heavy duty garbage bags missing from a box of
ten and a shower curtain missing a plastic liner.

While there was no evidence of a struggle at Silverman’s
house, the evidence also established that Kimes and her son
could have easily overpowered Silverman without a struggle.
Silverman was 82 years old, four feet eight inches tall and
weighed a mere 115 pounds. Kenneth was six feet tall and
weighed 190 pounds and Kimes was five feet five inches tall
and weighed 200 pounds. They could have overpowered
Silverman with sheer bodily force. Moreover, they possessed
various tools for overpowering Silverman, such as a stun
gun and sleeping drugs.

Finally, if any doubts remained as to the guilt of Kimes,
these were laid to rest with the evidence of possession of
Silverman’s property, including Silverman’s distinctive
townhouse keys, her social security card and documents with
her name on them, following her disappearance.

Accordingly, we find the evidence legally sufficient to
sustain Kimes’s conviction for murder, robbery and

Pre-trial rulings challenged by Kimes

1. The request for a Darden hearing was properly denied

Search warrants were issued for, inter alia, Apartment 1B,
the Lincoln, mailboxes rented by Kimes and her son, and
data from Kimes’s cellular phone. In her pre-trial omnibus
motion, Kimes requested a Darden hearing in order to
determine the existence and identities of the informants
upon whose information the search warrants had been issued.
The identities of four of the informants (associates and
employees of Silverman) were kept confidential before the
trial and they were not presented to the issuing judge at
the time the warrants were signed.

The court denied Kimes’s application for a Darden hearing,
saying there was no possibility the informants were
fictitious since most of them had testified under oath
before the grand jury. On appeal, Kimes argues that she was
improperly denied a Darden hearing.

The purpose of a Darden hearing is to protect defendants
from informants who may have been wholly imaginary and from
communications that are entirely fictitious. People v.
Darden, 34 N.Y.2d 177, 182, 356 N.Y.S.2d 582, 586, 313
N.E.2d 49, 52 (1974), and see People v. Serrano, 93 N.Y.2d
73, 688 N.Y.S.2d 90, 710 N.E.2d 655 (1999). This is
especially important in cases where an informant’s
information is the sole basis for probable cause for an

In People v. Edwards, 95 N.Y.2d 486, 719 N.Y.S.2d 202, 741
N.E.2d 876 (2000), the Court carved out exceptions to the
Darden rule, and stated that a hearing is not required in
cases where the informants have previously testified before
the judge who issued the warrant “since their existence and
statements have already been verified.” Id. at 493, 719
N.Y.S.2d at 206.

In this case, while they did not testify before a judge, all
four informants testified before the grand jury. Moreover,
all four informants subsequently testified, and were
subject to cross-examination at trial, thus the objectives
of a Darden hearing were fully accomplished during the
trial. See People v. Hamilton, 227 A.D.2d 669, 671, 641
N.Y.S.2d 746, 748 (3d Dept. 1996), lv. denied, 88 N.Y.2d
1068, 651 N.Y.S.2d 412, 674 N.E.2d 342 (1996). Thus, we
uphold the trial court’s denial of a Darden hearing.

2. The suppression of Kimes’s statement was properly denied

In a Huntley hearing, Kimes moved to suppress the statements
she made to NYPD Detective Hackett on July 7, 1998 when the
NYPD was attempting to locate Silverman. The court ruled
that Kimes’s constitutional rights were not violated by
Detective Hackett’s continued inquiries even though Kimes
had invoked her right to counsel.

At trial, Hackett testified that Kimes denied knowing
Silverman or anything about the case. He said that during
the interview she looked very smug and when he showed her
an article in The Daily News about Silverman’s
disappearance, she said, “how do I know this paper is for
real?” She then suggested that Silverman could be “out
walking her dog.” On appeal, Kimes claims that her
statements to Hackett should have been suppressed because
he continued to question her after she asked for a lawyer,
and he interrogated her in a coercive manner. We disagree.

Under New York’s emergency exception, police officers can
continue to question a defendant even after the defendant
has requested an attorney if an individual’s life or safety
is at stake. People v. Krom, 61 N.Y.2d 187, 473 N.Y.S.2d
139, 461 N.E.2d 276 (1984). Like the victim in Krom,
Silverman disappeared from her home without a trace. The
circumstances surrounding Silverman’s disappearance were
highly suspicious. When Hackett learned that Kimes had been
taken into custody and that she had some of Silverman’s
personal belongings, he questioned her exclusively about
Silverman’s whereabouts. Under these circumstances the
“emergency exception” was correctly applied and Kimes’s
statements were properly admitted at trial. We further
conclude that the safety exception discussed in New York v.
Quarles, 467 U.S. 649, 104 S.C. 2626, 81 L.Ed.2d 550 (1984)
applies to a situation where a suspect has invoked the
right to counsel, and that it also applies to the type of
emergency presented here.

Nor was suppression of Kimes’s statements to Hackett
warranted upon the ground of involuntariness. In
determining voluntariness, a court must review all of the
surrounding circumstances to see whether a defendant’s will
was overcome. People v. Mateo, 2 N.Y.3d 383, 413, 779
N.Y.S.2d 399, 417, 811 N.E.2d 1053, 1071 (2004), cert.
denied, 542 U.S. 946, 124 S.C. 2929, 159 L.Ed.2d 828;
People v. Anderson, 42 N.Y.2d 35, 396 N.Y.S.2d 625, 364
N.E.2d 1318 (1977). In this case, Kimes was not restrained
in any way or denied sleep for any extended period.
Further, Kimes did not appear afraid of Hackett; in fact,
according to Hackett’s testimony, credited by the hearing
court, she appeared “smug” during the questioning. There is
nothing in the record to suggest that her will was
overborne by the surrounding circumstances.

In any event, any error in admitting Kimes’s statements to
Hackett at trial, would have been harmless. See People v.
Paulman, 5 N.Y.3d 122, 800 N.Y.S.2d 96, 833 N.E.2d 1318
(2005). There was a veritable mountain of independent
testimonial, physical, and documentary evidence that
connected Kimes to the death of Silverman. The statements
she made to Hackett were a very minor part of the trial
evidence and did not directly link her to the crimes with
which she was charged.

3. The victim’s hearsay statements were properly admitted

In an in limine hearing, the court ruled in favor of the
People on the admissibility of certain hearsay statements
made by Silverman to her friends and staff prior to her
disappearance. Those statements included the victim
expressing her feelings and fear of the new tenant, Kenneth
Kimes (“Manny”); asking an employee to end his vacation
early because she was suspicious of the new tenant; asking
the manager of her building (Fieg) to write a letter
instructing “Manny” to leave immediately. Also admitted
were statements that served to establish that she had no
future plans to travel or to sell her townhouse. For
example she told her seamstress she would see her the
following Wednesday; and her attorney testified that
Silverman never said anything about selling her townhouse.

In granting the motion, the court noted that statements with
regard to Silverman’s “attitude and feelings” about “either
or both defendants” were admissible to show state of mind
and future intent regarding “what Silverman’s actions were
likely or not likely to be.” The court also instructed the
jury that the evidence was to be used for the limited
purpose of establishing Silverman’s “feelings and attitude.”
On appeal, Kimes argues that the testimony of Silverman’s
staff and friends was inadmissible hearsay. She also
contends that admission of this evidence violated her state
and federal rights to confront and cross-examine the
People’s witnesses.

At the outset, we note that any issue of whether evidence
admitted at trial denies a defendant’s constitutional right
to confrontation must be raised before the trial court.
People v. Kello, 96 N.Y.2d 740, 723 N.Y.S.2d 111, 746
N.E.2d 166 (2001). Kimes did not raise her constitutional
claims at trial. Her objection to the admission of the
state of mind evidence made no reference to the
Confrontation Clause. Therefore, these claims are
unpreserved, and we decline to review them in the interest
of justice.

Moreover, we find that the trial court ruled correctly on
the admissibility of the hearsay statements. While
out-of-court statements are generally not admissible for
the truth of the matter asserted (People v. Huertas, 75
N.Y.2d 487, 492, 554 N.Y.S.2d 444, 447, 553 N.E.2d 992, 995
[1990]), they are not excluded as hearsay when the
declaration is relevant for another purpose. See e.g.
Loetsch v. New York City Omnibus Corp., 291 N.Y. 308, 52
N.E.2d 448 (1943).

Silverman’s declarations to her friends and staff are
compelling evidence of how she felt about her tenant
“Manny” (Kenneth Kimes) and what her intentions were with
respect to her townhouse. Even if Kenneth Kimes was not the
“suspicious criminal” or “thief” Silverman described to her
staff and friends, the testimony of Silverman’s dislike is
relevant because it shows her distrust of Kenneth Kimes.
Such evidence demonstrates that Silverman was most unlikely
to transfer title to her townhouse voluntarily to him and
his mother, and was not excludable as hearsay.

Kimes further argues that the testimony of Silverman’s
friends and employees does not fall within the
state-of-mind exception established in Mutual Life Ins. Co.
v. Hillmon, 145 U.S. 285, 12 S.C. 909, 36 LED. 706 (1892).
This exception to the hearsay rule allows out-of-court
statements that demonstrate the declarant’s intent to
perform an act in the future to be admitted at trial so
long as such intent illuminates a material issue at trial.
See also People v. James, 93 N.Y.2d 620, 695 N.Y.S.2d 715,
717 N.E.2d 1052 (1999). Kimes argues that the state-of-mind
exception only applies when the out-of-court statement
involves an intent to act in the future, as opposed to an
intent to not act. Citing to Hillmon for this proposition,
Kimes claims that because Silverman’s statements revealed
an intent not to sell her townhouse and an intent not to
travel, they were inadmissible. Kimes claims that the
state-of-mind exception “is not intended to permit
admission of hearsay evidence of a declarant’s purported
statements for the[. . . ]unreliable purpose of
demonstrating that the declarant would not have acted in
any other way and, thus she must have fallen victim to the
entirely independent criminal intervention of someone else.”
We disagree.

This Court adopted the Hillmon rule in People v. Malizia,
92 A.D.2d 154, 160, 460 N.Y.S.2d 23, 27 (1983), aff’d, 62
N.Y.2d 755, 476 N.Y.S.2d 825, 465 N.E.2d 364 (1984), cert.

469 U.S. 932, 105 S.C. 327, 83 L.Ed.2d 264 (1984), in which
we held that out-of-court statements regarding future
intent are only admissible where the statement is made
under circumstances that make it probable that the
expressed intent is a serious one, and it is realistically
likely that the purportedly intended event would take place.
In other words, the exception is justified when the
circumstances in which the declarations are made provide an
independent basis for assessing the reliability of the
declarations as indicia of future conduct, whether that
conduct consists of acts or omissions. See also People v.
Chambers, 125 A.D.2d 88, 512 N.Y.S.2d 89 (1st Dept. 1987),
appeal dismissed, 70 N.Y.2d 694, 518 N.Y.S.2d 1031, 512
N.E.2d 557 (1987).

In this case, the circumstances of record support the
admission of the victim’s statements to show her intent
with respect to her residence: Silverman, an 82-year-old
woman who had not slept away from her apartment in 15
years, stated she had no plans to travel. She had
bequeathed her house to a foundation established in honor of
her mother, stating that she did not plan to sell her
townhouse. When viewed in this light, Silverman’s
statements to family and friends appear to be reliable
indicia of her future conduct respecting the townhouse.
Therefore, pursuant to Hillmon, they were admissible.

4. The trial court’s Sandoval ruling was fair and proper

At the Sandoval hearing, the People presented an extensive
list of Kimes’s prior crimes and bad acts which they
intended to utilize for impeachment if Kimes testified on
her own behalf. These dated back to a 1961 California
conviction for petty theft, and included a 1974 California
conviction for theft, a 1985 Washington D.C. conviction for
grand theft, and 1986 federal convictions for involuntary
servitude, conspiracy, transporting illegal aliens, and
escape. The bad acts about which the People sought to
inquire included forgery, insurance fraud (arson), theft,
intimidation, harassment, conduct respecting people who had
disappeared, attempted drugging of individuals and filing a
false lawsuit.

The People also sought to inquire about the underlying facts
of the 1986 federal conviction, which essentially
established that Kimes for a period of seven years enticed
young girls from Mexico and El Salvador with promises of
wages and a better life. Once the girls arrived in the
United States, Kimes forced them to work seven days a week
without pay while threatening and beating them.

The court ruled the People could not inquire about threats
Kimes had made or her alleged attempt to drug another
person or anything having to do with the disappearance of
various people because “that subject was too close to this
case.” But the court permitted the People to inquire about
the 1986 convictions including the underlying facts,
because “there was an extraordinary amount of deception
involved in the execution of those crimes.”

On appeal, Kimes contends that the trial court’s ruling was
an abuse of discretion because involuntary servitude raised
“inflammatory racial” connotations, that the conviction was
old and that Kimes was the only person who could testify in
her own defense. Kimes’s arguments are partially
unpreserved (e.g., at the hearing she complained only that
the conviction for involuntary servitude might engender a
“natural bias” against defendant among jurors) and, in any
event, without merit.

There are no per se rules requiring preclusion because of
the age, nature and number of a defendant’s prior crimes.
People v. Walker, 83 N.Y.2d 455, 459, 611 N.Y.S.2d 118,
120, 633 N.E.2d 472, 474 (1994). The Court of Appeals has
“declined to prohibit impeachment simply because of the
potentially inflammatory impact of the prior crime[. . .
].” People v. Hayes, 97 N.Y.2d 203, 208, 738 N.Y.S.2d 663,
666, 764 N.E.2d 963, 966 (2002).

The People observe that, “given how many crimes defendant
committed, and how probative they were to her credibility,
the court’s Sandoval ruling was a model of restraint.” We
agree, and thus find that the court acted well within its

The Trial: Juror issues

5. Kimes’s peremptory challenges were properly disallowed

During the first round of jury selection, Kimes exercised
peremptory challenges against all six of the white
panelists. These panelists were then excused from service.
In the second round, Kimes made peremptory challenges
against the next two available white jurors, Reape and
Belladonna. The People, pursuant to Batson v. Kentucky, 476
U.S. 79, 106 S.C. 1712, 90 L.Ed.2d 69 (1986), objected to
the challenges against Reape and Belladonna, arguing that
Kimes had challenged an excessive number of white jurors
during the first and second rounds. The court conducted a
Batson hearing and concluded that defense’s reasons for
challenging Belladonna and Reape were pretexts for racial
discrimination. The court seated the two jurors.

On appeal, Kimes argues that the People failed to show that
the peremptory challenges against Belladonna and Reape were
discriminatory. We disagree, and uphold the trial court.

A litigant has a statutory right to exercise a peremptory
challenge against a potential juror. CPL 270.25(1). Such a
challenge may not be disallowed unless it falls within the
narrow exception of unlawfully discriminatory challenges.
Matter of Mortillaro v. Posner, 147 A.D.2d 701, 538
N.Y.S.2d 311 (2nd Dept. 1989).

It is well settled that a party may not consider the race of
a prospective juror in deciding whether that individual
ought to serve on a jury. Batson v. Kentucky, supra. The
use of peremptory challenges for discriminatory purposes,
such as to exclude persons of a particular race from
serving on the jury, is forbidden by the Equal Protection
Clause of the Fourteenth Amendment, (id.), as well as Equal
Protection Clause of our State Constitution. People v.
Kern, 75 N.Y.2d 638, 555 N.Y.S.2d 647, 554 N.E.2d 1235

In the three-step analysis where (1) a party raises a Batson
challenge and establishes a prima facie case of
discrimination, and (2) the party opposing the challenge
proffers race-neutral reasons for its challenges, it is up
to the trial court (3) to make a determination as to
whether the race-neutral reasons for the peremptory
challenges are merely a pretext for discrimination. Batson,
476 US at 95 (when circumstances suggest the need, the
trial court must undertake a “factual inquiry” that “takes
into account all possible explanatory factors”). At this
third step, trial courts “are authorized to act on
outlandish or entirely evanescent assertions, even if they
appear race-neutral on their face.” People v. Payne, 88
N.Y.2d 172, 183, 643 N.Y.S.2d 949, 956, 666 N.E.2d 542, 549
(1996). Further, the trial court’s responsibility is to
make a sufficient record to allow for meaningful appellate
review as well as to “reflect [. . . ]the basis for their
rulings.” Id., at 184, 643 N.Y.S.2d at 957.

In the case at bar, the People made a prima facie showing
of discrimination by showing that Kimes used peremptory
challenges to exclude every white panelist in the first
round of jury selection and the first two white panelists
in the second round. Upon the People’s motion for the
Batson inquiry, the court noted it had been “aware” and
“concerned” about what it perceived as a pattern of
discrimination in the defense challenges and asked the
defense to explain the basis for their strikes.

The defense provided race-neutral reasons for challenging
the potential jurors. Kimes claimed that Reape and
Belladonna were stricken because they both admitted
discussing their potential jury service with their
families. Further, Kimes claimed that Reape was a former
business owner and that “every retail owner is always
concerned about the possibility of theft and a violent
robbery.” Kimes also did not like Reape’s response when
asked about her sentiments regarding the case because Reape
said she felt like an Army volunteer. As for Belladonna, in
Kimes’s estimation, the potential juror had a “cavalier
attitude” towards jury duty.

Considering the pattern of discrimination in the first
round, the court concluded that the strikes against Reape
and Belladonna were racially motivated and sat the two
jurors on the jury. The court noted that while both jurors
had discussed the case with family, they only discussed
scheduling matters and had not discussed the actual
substance of the case. The court also pointed out that
Reape had not worked in years.

On appeal, Kimes, relying on Payne, claims that the People
failed to show that her peremptory challenges to Belladonna
and Reape were discriminatory. She claims that the People
did not meet their burden because they failed to address
all of the race-neutral reasons she proffered for her
peremptory challenges.

The prosecution was under no obligation to address all of
the race-neutral reasons that were proffered in order to
carry its burden of proving pretext. Pretext can be found
without the moving party, in this case the People,
addressing any of the race-neutral reasons proffered by the
striking party. In Payne, the Court of Appeals held that a
trial court may render a ruling of purposeful
discrimination “without hearing more discussion from either
or each side” after the striking party has proffered its
race-neutral reasons. Payne, 88 N.Y.2d at 184, 643 N.Y.S.2d
at 957. See also People v. Smocum, 99 N.Y.2d 418, 757
N.Y.S.2d 239, 786 N.E.2d 1275 (2003).

This Court has consistently held that the disparate
treatment of panelists with similar characteristics can
evince that a proffered reason for a juror’s exclusion is
pretextual. See People v. Lozado, 303 A.D.2d 270, 755
N.Y.S.2d 611 (1st Dept. 2003), lv. denied, 100 N.Y.2d 563,
763 N.Y.S.2d 821, 795 N.E.2d 47 (2003); People v. Smith,
303 A.D.2d 206, 755 N.Y.S.2d 600 (1st Dept. 2003), lv.
denied, 100 N.Y.2d 543, 763 N.Y.S.2d 9, 793 N.E.2d 423

In the case at bar, the prosecution, having already pointed
to instances of disparate treatment of similar panelists in
the first round, indicated that Reape and Belladonna were
not being treated in the same way as minority panelists
with similar characteristics. For example, Reape and
Belladonna were not the only jurors who had discussed their
jury service with their families. The prosecution clearly
met its burden of demonstrating pretext. Moreover, given
the finding of pretext in one reason, it was unnecessary
for the court to address all of the race-neutral reasons
Kimes proffered for her challenges.

We find that the court afforded both the People and the
defendant a sufficient opportunity to make the necessary
record, and see no ground to disturb its rejection of
Kimes’s proferred race-neutral reasons. See People v.
Jones, 297 A.D.2d 256, 746 N.Y.S.2d 596 (1st Dept. 2002),
particularly since that ruling depended heavily on the
court’s credibility determinations and independent
assessment of the panelists’ demeanor. People v. Turner,
294 A.D.2d 192, 743 N.Y.S.2d 78 (1st Dept. 2002), lv.
denied, 98 N.Y.2d 732, 749 N.Y.S.2d 482, 779 N.E.2d 193
(2002); People v. Sutton, 288 A.D.2d 115, 733 N.Y.S.2d 344
(1st Dept. 2001) lv. denied, 97 N.Y.2d 709, 739 N.Y.S.2d
110, 765 N.E.2d 313 (2002).

6. The court’s inquiry into juror misconduct was sufficient

During the trial, the judge received information through her
clerk that a woman, a “self-styled psychic petfinder,” who
had been attending the trial had reported overhearing
jurors speaking in the courthouse bathroom. Several jurors
allegedly had said that they were “spooked” by defendants.
They also allegedly said that one of the lawyers was stupid.

The defense attorneys argued that the court should question
the woman about the conversation she claimed to have
overheard. The prosecution argued that the court should
simply question the jurors. The court questioned the jurors
individually, asking if the juror had shared with any other
juror, or overheard any negative views about either of the
defendants or any of the lawyers that would prevent him/her
from being fair to the defendants and keeping an open mind
until the end of the case. All but five of the jurors and
alternates said they had not heard or shared any negative
views. Each of the remaining five admitted to talking about
the attorneys but said they could remain fair to the

Kimes contends that the court erred in refusing to interview
the woman who overheard the remarks. Kimes, citing People
v. Buford, (69 N.Y.2d 290, 298, 514 N.Y.S.2d 191, 195, 506
N.E.2d.901, 905 [1987]) also contends that the court should
have made a more detailed inquiry of the jurors to
determine “what the juror[s] ha[d] seen, heard, or ha[d]
acquired knowledge of.” We disagree.

The trial court has discretion in its investigation of
alleged juror misconduct. See People v. Echevarria, 17
A.D.3d 204, 205, 794 N.Y.S.2d 15, 16 (1st Dept 2005),
aff’d, 6 N.Y.3d 89, 809 N.Y.S.2d 509, 843 N.E.2d 149
(2005). When a court is confronted with an allegation that a
juror is grossly unqualified or engaged in substantial
misconduct, “the trial court must question each allegedly
unqualified juror” before reaching a conclusion as to
whether to keep or discharge the juror. The inquiry must be
“probing and tactful,” and should be geared to ascertaining
whether the juror has heard or seen or acquired knowledge of
something that might prevent him or her from rendering an
impartial verdict in the case. Buford, 69 N.Y.2d at 299,
514 N.Y.S.2d at 196.

We find that the court conducted a sufficient inquiry of
each juror. The jurors’ responses to the court’s inquiry
showed that they had not shared any negative views about
Kimes, her son, or the attorneys that might have
compromised their ability to reach a fair and impartial

7. The discharge of a sick juror was proper

Towards the end of the trial, on May 15, 2005, the uncle of
Juror Number 4 called to say that Juror Number 4 had been
taken to the hospital because he could not breathe. The
uncle said that he did not believe the juror would be able
to appear that day.

At 10:30 a.m., the court determined that there was no
reasonable likelihood that Juror Number 4 would return by
11:30 a.m., it therefore discharged him, invoking the
two-hour provision of CPL 270.35(2)(a). Juror Number 4 was
ultimately diagnosed with pneumonia and was admitted to the

Kimes argues that the trial court erred in discharging the
juror and submitting an alternate because the judge did not
conduct a “reasonably thorough inquiry” (see CPL
270.35[2][a]) into why the juror was absent, and as a
result, she was denied her constitutional right to a jury
of her choosing. See People v. Jeanty, 94 N.Y.2d 507, 517,
706 N.Y.S.2d 683, 680, 727 N.E.2d 1237, 1244 (2000).

This argument is utterly devoid of merit. CPL 270.35(1)
provides that a trial court may replace a sworn juror,
without a defendant’s consent before the jury begins its
deliberations, if the juror “is unable to continue serving
by reason of illness or other incapacity, or for any other
reason is unavailable for continued service.” CPL 270.35(2)
further states that “the court shall make a reasonably
thorough inquiry” about a juror’s illness; it does not
mandate a particular means of making such inquiry. The
Court of Appeals has held that the “two-hour rule” gives
the court broad discretion to discharge any juror whom it
determines is not likely to appear within two hours. People
v. Jeanty, 94 N.Y.2d at 517, 706 N.Y.S.2d at 689.

Since the court’s conclusion was that there was no
reasonable likelihood that the juror would appear within
two hours, it was well within the judge’s discretion to
discharge the sick juror and substitute an alternate.
Furthermore, contrary to Kimes’s claim, she was not “denied
her constitutional right to a jury of her choosing” because
she had a voice in choosing the alternates as well as the
regular jurors. Id., at 518, 706 N.Y.S.2d at 691.

The Trial

8. Notebooks admitted into evidence did not violate Kimes’s
Fifth Amendment or attorney-client privileges

While Kimes was being held in custody, the black duffel bag
she had deposited at the Plaza Hotel on the day of
Silverman’s disappearance remained in the hotel. After her
arrest, Kimes asked Lawrence Frost, the private
investigator hired to work on her defense team, to retrieve
the bag and bring it to her attorney. The bag contained
personal items belonging to Kimes, including a loaded gun
and several notebooks containing to-do lists which in the
words of the People provided a “virtual roadmap to the
commission of the offenses charged.”

After Frost retrieved the bag, the director of security at
the Plaza Hotel notified the detectives investigating Kimes
and her son. The People issued subpoenas directed at
Kimes’s attorneys and her investigator compelling
production of the bag. Frost was also subpoenaed to testify
before the grand jury.

Kimes moved to suppress the notebooks found within the bag,
arguing that the subpoenas violated her Fifth Amendment
privilege against self-incrimination and her
attorney-client privilege. The court rejected the motion
stating that the “circumstances [. . . ]point to the
conclusion that [defendants] intended that the bag, which
contained items which were exceedingly inculpatory, never
surface again.”

On appeal, Kimes describes the notebooks as “key” evidence
which she asserts was improperly admitted as evidence at
trial. We disagree.

The Fifth Amendment to the United States Constitution
provides that no defendant in a criminal case “shall be
compelled[. . . ]to be a witness against himself.”
Moreover, it is well settled that the act of producing
incriminating documents in response to a subpoena, and
responses to questions regarding such production may have a
compelled testimonial aspect to which the Fifth Amendment
privilege applies. United States v. Hubbell, 530 U.S. 27,
36, 120 S.C. 2037, 2043, 147 L.Ed.2d 24, 36 (2000) (by
producing documents in compliance with a subpoena, the
witness would admit that the papers existed, were in his
possession or control, and were authentic); see also In re
Grand Jury Subpoena Duces Tecum, 1 F.3d 87, 93 (2nd Cir.

In In re Grand Jury, the court held that the Fifth Amendment
privilege extends to the production of documents when the
existence and location of the subpoenaed papers are unknown
to the government at the time the subpoenas are issued, and
where production would implicitly authenticate the
documents. Id.

Kimes correctly claims that, at the time the police issued
the subpoena for the black duffel bag they did not know the
contents of the bag, and therefore did not know that the
documents existed. Kimes also alleges that the act of
production “implicitly authenticated” the notebooks because
it was she who checked the bag at the Plaza and the
notebooks were in the bag at the time.

Nevertheless Kimes’s argument is without merit. First, where
the existence, possession and control of the documents are
“foregone conclusions,” compelled production of the
documents does not violate the Fifth Amendment. Id., citing
Fisher v. United States, 425 U.S. 391, 96 S.C. 1569, 48
L.Ed.2d 39 (1976). In this case, the police were aware of
the existence of the bag through a handwritten reference to
the “Plaza” and a claim check number. Police also learned
from the head of security at the Plaza Hotel that the bag
did in fact exist and had been picked up by private
investigator Frost. Therefore, the possession of the bag
and its contents including the notebooks was a “foregone

In any event, the subpoenas in the case relied on by Kimes
were directed at the underlying defendants themselves. In
the case at bar, it was Kimes’s attorneys and investigator
who were subpoenaed to produce the bag. In Fisher, the
Supreme Court made it clear that a subpoena directed
against a defendant’s agents does not implicate the Fifth
Amendment because the compulsion is directed against the
agent, not the defendant, and the agent does not
incriminate himself by complying with the subpoena. 425
U.S. at 397-399.

Kimes further asserts that her attorney-client privilege was
violated when her attorneys and private investigator were
compelled to produce the notebooks. Relying on Matter of
Vanderbilt, (57 N.Y.2d 66, 453 N.Y.S.2d 662, 439 N.E.2d 378
[1982]), she argues that the notebooks were not
discoverable in her hands, therefore they were not
discoverable in her attorney’s hands because they were
being delivered to her attorney in contemplation of the
pending litigation.

Unlike the defendant in Vanderbilt, however, here Kimes has
failed to establish that the notebooks were not
discoverable in her hands. Kimes voluntarily wrote the
notebooks before the subpoena was issued to her lawyers.
Therefore, the notebooks could not be said to “contain
compelled testimonial evidence.” Hubbell, supra; see also
People v. Slavin, 1 N.Y.3d 392, 399, 775 N.Y.S.2d 210, 214,
807 N.E.2d 259, 263 (2004), cert. denied, 543 U.S. 818, 125
S.C. 64, 160 L.Ed.2d 26 (2004).

Further, Kimes did not meet her burden of establishing that
the notebooks were delivered to her attorney for legal
advice. The notebooks were not created by her after the
crime as a means of communicating confidential information
about the case to her attorneys, as were the tapes in
Vanderbilt. See 57 N.Y.2d at 76, 453 N.Y.S.2d at 668.
Rather, they were created during the planning stages of the
crime and contained information regarding Silverman, her
townhouse and her staff; all of which had been collected to
assist in the commission of the crimes.

The evidence in this case overwhelmingly demonstrates that
Kimes arranged for delivery of the bag to her attorney not
to obtain legal advice regarding the notebooks but rather
to conceal the bag and its contents, hoping they would
never surface again. The attorney-client privilege is not
properly relied upon where, as here, an attorney is simply
utilized by the client “as a repository for any
incriminating evidence that might be held by the client.”
Vanderbilt, 57 N.Y.2d at 80, 453 N.Y.S.2d at 670.

9. Kimes’s ineffective counsel claim did not require inquiry
and is without merit

Frost, the private investigator who retrieved Kimes’s black
duffel bag from the Plaza was called as a witness at trial
for the People. He testified that he attended a meeting
with Kimes and her counsel at which Kimes directed him to
retrieve the bag and deliver it to her defense attorneys.
Frost further testified that he retrieved the bag, took it
to his brother’s office and privately inspected the bag and
its contents. He told the jury he had found a deed bearing
the signature of Silverman, notebooks, handcuffs and a
loaded pistol. Frost denied putting anything inside the bag
or destroying anything within the bag. Frost was then
cross-examined by attorneys for both Kimes and her son.

On appeal, Kimes claims that she was denied effective
assistance of counsel because Frost’s testimony about his
retrieval of the bag created a conflict of interest for her
defense attorney. Specifically, she asserts that Frost, a
member of the defense team, was a key prosecution witness
testifying as to the validity and chain of custody of the
prosecution’s most devastating evidence against the
defendant. Kimes argues that defense counsel could not
effectively challenge Frost’s testimony because to attack
Frost would be to attack a member of the defense team, and
thus, defense counsel’s own credibility. We find Kimes’s
claims of ineffective assistance of counsel unavailing.

A defendant has a federal and New York State constitutional
right to effective assistance of counsel. This right
entitles a defendant to representation that is “reasonably
competent, conflict-free and singlemindedly devoted to the
client’s best interests.” People v. Longtin, 92 N.Y.2d 640,
644, 684 N.Y.S.2d 463, 465, 707 N.E.2d 418, 421 (1998),
cert. denied, 526 U.S. 1114, 119 S.Ct. 1760, 143 L.Ed.2d
791 (1999). But, a defendant’s rights are not violated if
the prosecution calls a defendant’s expert as a witness.
People v. Greene, 153 A.D.2d 439, 448, 552 N.Y.S.2d 640,
646 (2d Dept. 1990), lv. denied, 76 N.Y.2d 735, 558
N.Y.S.2d 897, 557 N.E.2d 1193 (1990), cert. denied, 498
U.S. 947, 111 S.C. 363, 112 L.Ed.2d 326 (1990).

Kimes contends, however, that testimony by a defendant’s
investigator is different from testimony by a defendant’s
expert witness. Relying on two cases where attorneys
testified against their clients, People v. Lewis, (2 N.Y.3d
224, 777 N.Y.S.2d 798, 809 N.E.2d 1106 [2004]) and People
v. Berroa, (99 N.Y.2d 134, 753 N.Y.S.2d 12, 782 N.E.2d 1148
[2002]), she argues that Frost was an agent of her

However, there is no evidence that Frost was part of the
“defense team” during the trial. Frost was hired to do
preliminary investigative work for the defense. Nowhere
does the record indicate that Frost worked beyond the
initial stages of the case. Because Frost was not part of
the “defense team” at the time of trial, we find that an
attack on his credibility would not have had any effect on
the defense attorney’s credibility.

We have also considered Kimes’s claim that her conviction
should be reversed because the trial court did not alert
her to the alleged conflict of interest and find that it is
equally unavailing.

10. Minor restrictions on cross-examination did not violate
Kimes’s right to confront the witnesses against her

On appeal, Kimes claims the trial court restricted her
cross-examination of two of the People’s witnesses, thus
violating her Sixth Amendment right under the Confrontation
Clause. John Osborn was the People’s handwriting expert;
Alex Genova was a former convict who met the Kimeses on
their first day in New York, and whom the defendant
subsequently contacted for help in her search for a notary.

Several weeks before Genova testified at the trial of Kimes
and her son, he pleaded guilty in federal court to
possession of a controlled substance with intent to sell.
Although he was facing a possible 40-year sentence, he
received three years’ probation because he agreed to
cooperate in an investigation of the drug trade in Brooklyn.
However, it was established that Genova had not been
promised any benefit for his testimony at Kimes’s trial.
The court allowed Kimes to inquire into the underlying
facts of Genova’s convictions, whether Genova had
co-operated with federal authorities against his
codefendant and whether Genova had received any benefit on
his federal case as a result of testifying against Kimes.
Defense counsel cross-examined Genova extensively about
these topics. Defense counsel also attempted to
cross-examine Genova about his “propensity to work with the
government in order to turn other people in.” The court
ruled that it would be “extraneous and irrelevant” for the
defense to delve into details of Genova’s “cooperation
agreement” with the federal authorities and inappropriate to
suggest that Genova was a professional cooperator.

John Osborn testified for the People as an expert in
forensic document examination. During his testimony he
rendered opinions as to the authenticity of purported
Silverman signatures on documents found among the
defendant’s property, and concluded that several of them
were fake. Kimes wanted to cross-examine Osborn about
alleged mistakes in high-profile cases made by his
grandfather and father both of whom trained Osborn[fn4].
The court ruled that opinions made by the father and
grandfather in past cases were “irrelevant” and further that
Osborn had not claimed that they were infallible.

On appeal, Kimes asserts that these restrictions violated
her constitutional right of confrontation. She argues that
both men were significant witnesses and that she was
prevented from fully challenging their credibility and
reliability. We disagree.

” [T]he Confrontation Clause guarantees an opportunity for
cross-examination, not cross-examination that is effective
in whatever way, and to whatever extent the defense might
wish.'” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106
S.Ct. 1431, 1435, 89 L.Ed.2d 674, 683 (1986), quoting
Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88
L.Ed2d 15 (1985). Further, trial judges are given wide
latitude to impose reasonable limits on cross-examination.

In this case, the issues upon which restrictions were placed
were peripheral to the case. Moreover, even if Kimes’s
right to cross-examine was violated, Confrontation Clause
errors are subject to harmless error analysis. Van Arsdall,
475 U.S. at 681-682, 684. Here, cross-examination on the
topics would not have appreciably undermined the People’s
case. Genova was not the only witness as to Kimes’s attempt
to procure a notary; and Osborn, while the only handwriting
expert called by the People, was not the only witness to
render opinions on Silverman’s signature or Kimes’s

11. Kimes’s right to counsel was not violated by a one-night
telephone ban

One month into the trial, the court notified defense counsel
that Kimes had called a reporter at The New York Times to
refute the testimony at trial. The court warned, “if she
persists, I will just cut out the phone calls completely.”

On May 4, 2000, the People noted that despite the court’s
ruling prohibiting Kimes from contacting the press, and
despite her counsel’s wishes, Kimes had again contacted The
New York Times. The court then cut off her phone
privileges. Defense counsel joined in the application,
agreeing that his client should not be allowed to talk to
the press. However, counsel asked the court to modify the
ban on Kimes’s telephone privileges to allow her to contact
her attorneys. The court, expressing doubt as to effective
supervision by the Department of Corrections, denied
counsel’s request. The court noted that Kimes knew of the
order and the consequences of violating the order,
therefore she had consciously forfeited her phone
privileges. The next day, however, her telephone privileges
were restored with respect to her attorneys.

On appeal, Kimes argues that she was denied her right to
effective counsel when she was denied phone privileges

Citing Geders v. United States (425 U.S. 80, 96 S. Ct.
1330, 47 L. Ed.2d 592 [1976]), and People v. Joseph (84
N.Y.2d 995, 622 N.Y.S.2d 505, 646 N.E.2d 807 [1994]), Kimes
claims that the overnight ban on her telephone privileges
violated her state and federal constitutional right to
effective counsel. We disagree.

Both Geders and Joseph involved an outright ban on
consulting with counsel. However, in the case at bar,
taking away Kimes’s telephone privileges did not constitute
a prohibition against consulting with counsel, or make it
impossible for her to consult with counsel.

12. Kimes’s right to be present was not violated by her
absence when attorney questioned her mental competency

At a bench conference held in Kimes’s absence, her attorney
informed the trial court that he believed Kimes should not
testify because he felt she was mentally incompetent and
becoming “irrational and delusional.” The attorney
requested a CPL 730.30 competency hearing. The court
refused, stating that there was no basis for such hearing
because Kimes was “clearly competent aware and attentive.”
The court then informed Kimes’s attorney who attempted to
argue further: “You have to put that on the record so
[defendant] hears it.” The issue of Kimes’s competency was
not pursued again, and Kimes did not testify.

On appeal, Kimes asserts that the exclusion violated her
rights to be present at trial. She further asserts that her
absence from this brief exchange between the judge and her
defense attorney was tantamount to her exclusion from a
critical moment in the proceedings that “involved factual
matters about which [she] might have peculiar knowledge.”
We disagree.

As a general matter, a defendant has a constitutional and
statutory right to be present at all material stages of the
trial. People v. Williams, 85 N.Y.2d 945, 626 N.Y.S.2d
1002, 650 N.E.2d 849 (1995); see CPL 260.20. Moreover, a
defendant has a right to be present at ancillary
proceedings when he/she may have ” something valuable to
contribute.'” People v. Williams, 85 N.Y.2d at 947, 626
N.Y.S.2d at 1003, quoting People v. Morales, 80 N.Y.2d 450,
456, 591 N.Y.S.2d 825, 829, 606 N.E.2d 953, 957 (1992).
However, a defendant does not necessarily have a right to
be present at a CPL 730.30 proceeding that does not entail
a hearing or any significant factual inquiry. See People v.
Horan, 290 A.D.2d 880, 737 N.Y.S.2d 145 (3d. Dept. 2002),
lv. denied, 98 N.Y.2d 638, 744 N.Y.S.2d 767, 771 N.E.2d 840
(2002); People v. Racks, 221 A.D.2d 664, 635 N.Y.S.2d 501
(2d Dept. 1995), lv. denied, 88 N.Y.2d 992, 649 N.Y.S.2d
399, 572 N.E.2d 625 (1996); People v. Slejsk, 197 A.D.2d
420, 603 N.Y.S.2d 30 (1st Dept. 1993), lv. denied, 82
N.Y.2d 903, 610 N.Y.S.2d 170, 632 N.E.2d 480 (1993).
Therefore, we find that Kimes’s absence at the bench
conference did not violate either her constitutional or
statutory right to be present.

13. The trial court did not overlook a Brady violation

Kimes contends that the trial court should have conducted an
inquiry into a possible Brady violation on the grounds that
a police report into the Silverman investigation contained
a reference to latent prints that were identified as prints
of one Shawn Little, described as a suspect. Kimes’s
allegation that the report was withheld from her and that
therefore the People failed to comply with their ongoing
Rosario obligations in providing her with exculpatory
material is without merit.

Kimes failed to preserve the issue for appellate review. In
any case, Kimes was, in fact, provided with the police
report before trial. Indeed, Kimes’s knowledge of the
report and fingerprint match was evident in her
cross-examination of the detective who conducted that

Accordingly, the judgment of the Supreme Court, New York
County (Herbert I. Altman, J. at pretrial motions; Rena K.
Uviller, J. at pretrial motions, jury trial and sentence),
rendered June 27, 2000, convicting Sante Kimes of murder in
the second degree (three counts), robbery in the first
degree, burglary in the first degree, criminal possession
of a weapon in the second degree (two counts), criminal
possession of a weapon in the third degree (two counts),
criminal possession of stolen property in the third degree,
forgery in the second degree (sixteen counts), criminal
possession of a forged instrument in the second degree,
eavesdropping (twenty-nine counts), conspiracy in the
fourth degree, and attempted grand larceny in the first
degree, and sentencing her to an aggregate term of 120
years to life, should be affirmed.

M-1106 — People v Sante Kimes

Motion denied.


[fn1] People Weekly Magazine, July 27, 1998.

[fn2] Published by M.Evans & Co. Inc., (2002)

[fn3] Her son waived his right to appeal in exchange for
being allowed to serve his sentence in California.

[fn4] Allegedly, his grandfather had erred in identifying
the author of the ransom note in the Lindbergh kidnapping;
his father had made an error in verifying the Howard Hughes