good morning honors may it please the court my name is allegro glass hauser and i represent appellant peter mccourty donors mr mccord he had a right to confront his accuser the government didn't ask the witness why she didn't want to testify and it didn't try to subpoena her before just telling the court that she was too scared that wasn't good there isn't there a long history in this case of domestic violence the government relied instead of on the what the witness said in this case on the history of domestic incident reports two of those reports were ten years old and there was no indication they had any bearing on what the witness was going to choose to do in this case what about just a few days allegedly outside her home that's correct the report the report states that he had called in an attempt to get his belongings back from the home and was outside that report doesn't tell the district court or the government that this witness was too scared to come in to testify and the government made in the most minimal possible act like i would not provide a reasonable inference for a court to conclude that in light of the long history of domestic violence at the trick or line and she needs to court said this is why i believe she's in fear do you have to do the complainant have to say i'm in fear in the district court in firmly no matter what the complainant says whether they say something else or this is nothing at all that the real reason here is fear in the cases that this court has considered before yes the witness has had to either say why they would don't want to testify you will never we have never said they have to say that they're in  court cannot infer from the adventure record that the person is in fear yes your honor i think that the government needs to at least make an extra effort the government might have made extra efforts in this case that would have said satisfied the burden but here some efforts the center a letter she hung up on them when they tried to call or write i think it was another interaction with her three different interactions with her so it's not like they just said you know she's alleging domestic violence she must be in fear they had numerous three interactions with her which she declined well they sent a letter that didn't indicate they were asking her to testify it was a letter explaining that a case was going on that when she hung up on me and i when she hung up on them when they told her what they want one time they asked her if she would testify and she said no and hung up there are many reasons people don't want to testify including that it's unpleasant but it's inconvenient and nonetheless the government has to subpoena the person and then find out whether said at the hospital the extensive of her injuries so there was evidence of a physical incident and the defense counsel didn't dispute that the question was how serious the incident was which was important to the court's ultimate determination of whether the new york state misdemeanor rules were met and on that issue of how serious the incident was how long it lasted there was not corroboration and it was the witnesses hearsay statements that were really used in order for the court to make those findings the teenager who was also there given remarkably less dramatic recount of what had occurred and that contradicted what the hearsay statements were from the witness eleven call the witness was calm and the witness did not describe this lengthy incident that is described by the officer in hearsay so the hearsay statements here were in trouble the child the child did say that to her that his mom was punched the teenager said his his mother was punched right but here's a statement described a much more serious and lengthy incident and that matters when the court looks at whether the new york state law standards are met if you say somebody summers punched in the face it could mean repeatedly punched in the face it can mean once in the face but the point is somebody is punched in the face that's a pretty pretty startling action to punch somebody in the face so you're i'll give you that it is certainly startling but that wouldn't meet the standard for assault fairly low levels i recall substantial pain substantial pain  decision that's contrary to the legal standard and here when we did not have the witness testifying which is an important element in many of the new york city cases and new york state has said bruising does not show substantial pain in the you to get over the top and also you said that the nine hundred and eleven call i think you said was calm i mean i mean be the voice was calm but what she said in the nine hundred and eleven call he's coming back around so he could please hurry up and send somebody that hardly sounds like someone who's not fear when they say he's coming back around please hurry right does not indicate fear you're going to her voice is completely calm and that is undisputed she also tells them that he's on probation and parole which is not normally something that needs to be reported if you're when you're looking at the elements of the statutes and whether or not they've had have been that we need to look at the state law standard and whether the evidence proves that standard and here it didn't and because you're saying that in terms of  her voice was calm that her voice had to be something else in order to have any credibility no your honor i'm saying that we are leaning things from what this about what this witness might have said had she come in to t didn't come in to testify her testimony and what she experienced was the main issue of the case it was the key issue in the case both with respect to with respect to everything with respect to her credibility and whether the elements of the new york state offenses were met and the district court relied on the hearsay statements to find that those elements were met the district court didn't rely on the teenager's report it didn't just rely on the nine hundred and eleven call it relied on hearsay about this extensive incident and to allow this kind of hearsay with such a minimal burden on the government to secure her testimony would essentially create some sort of domestic incident exception to requiring a witness to come in to please the court counsel my name is virginia when i'm a special assistant united states attorney and i represent the government in this case with respect to the question of whether there was good cause not to produce the witness before the district court the record is clear that there was good cause frankly the district court not only didn't abuse any discretion here the district court did everything right it assessed was there reason for the victim not to come and based on the information and evidence presented by the government  found that the history of domestic violence would lead a reasonable and a person to reasonably infer that she was in fear of appearing to testify the court also assessed the reliability of the witnesses statements and there was plenty of addition of reliability from the medical records the nine hundred and eleven call the photographs of injuries the statement of the other witness at the scene that is the sun and the district court didn't stop there although frankly reviewing case law it possibly could have and there would still be good cause but the district court inquired of the government but what did you do to try to get the witness to come and what the court learned then is that they didn't just rely on this history of domestic violence the government did take steps to secure the witnesses appearance they brought they tried to call her twice as the court pointed out she hung up once on another time she explicitly stated i don't want to cooperate they sent a letter they tried to do a home visit these were reasonable efforts made by the government anything more absolute there's only always more that can be done they could have tried to subpoena her why didn't they try to it's not clear from the record it was a decision made by the government not to subpoena the witness but i would submit that in the circumstances message by those cases which has been recognized as recognized in these cases it's not uncommon for witnesses to not want to testify and based on the efforts they'd already made your practice with respect to seeking subpoenas i wouldn't say that there's a specific policy in there certainly not one indicated in the record but i would submit that based on based on your knowledge of the way the circuit based on the circumstances and the facts of this case and the government expecting that it would be able to meet its burden of showing good cause for not producing the witness it seemed  reasonable to the government to make its decision not to subpoena the witness and us district court pointed out well there's no burden on the defendant the defendant also had a right to subpoena witnesses if he should have chose so once a court made its balancing test it concluded that there was good cause to not have the witness there and introduced allow the introduction of these hearsay statements and the court made its decision just there's a few other facts that have been race yet today anyway which are not just the history of domestic incidents in the past and the call to nine thousand one hundred and fourteen days after the assault that was the subject of the incident there was also an order of protection in place so the incident had resulted in a disorderly conduct a violation finding by the court where the criminal charges were originally brought as a result of that there was a  order of protection for the benefit of the victim and the minor child so that was also in place which is another indication of why it was reasonable for the court to believe the victim was in fear of the defendant and as the court pointed out from their view of case law there's no requirement that the witness explicitly state she's in fear and there's no requirement that the government subpoena witnesses who don't wish to appear so long as there is otherwise good cause and turn to the sufficiency of the evidence all of those factors that lead the court to conclude there was a good cause based on the reliability of the complainant statements show the sufficiency of the evidence in this case all of that other evidence the nine hundred and eleven call the photographs of the injuries the observations of the st responding officer of the swelling all to the right side of the complainants face the corroborative statement of the child saying he hit her the medical records which also indicate some sort of prolonged incident as opposed to a single punch where in the medical records described that the complainant was kicked struck and thrown down all of those factors lead led the court to conclude as it did that there was subsea probable cause to believe that the defendant had violated the terms of his supervisor wellies by committing the crimes of assault in the rd degree menacing and indeed injuring the welfare of a child and based on all of those reasons there's no reason here to disturb very fact specific circumstances how do you respond to the argument that while the conduct here was was was was horrible it doesn't involve the same kind of serious harm and let's say johnson in reviewing the cases there's a whole spectrum of events that lead to charges of endangering the welfare of a child and i would agree that in johnson the facts are more egregious than what's presented here but based on the full set of circumstances that was proved scented at the hearing the evidence established and met the standard of a preponderance  this was late at night about one thousand four hundred and fifty two am in the morning the defendant mccourty had stranded his the mother of his child and his thirteen year old child on the side of a busy road he took the car he had the keys with him when the officers stopped him the complainant did not have her cell phone and we know that because it was recovered from the defendant himself and he was stopped by the police and at least part of the assault took place inside the car and if you imagine the close proximity of the individuals and occupants inside a car hitting one person inside a car clearly creates an endangered situation for the other occupants in the car particularly when it's a thirteen year old child witnessing a significant incident of domestic violence between his parents so we do have more than then a mere single incident there's another case cited where there was a push in front of a child and that was not sufficient but this is very different from that to your honor and it's also clear from the record here that the child witnessed it so it's not just the child's mere presence in a domestic violence incident this child observed it and reported it to the police so based on all of those facts there was more than sufficient evidence to support that finding thank you thank you just to start with your honor's question about the endangering count i think you're on a very good question significantly different situation than the court of the new york court of appeals case cited by the court and by the government johnson where there was a ten hour reign of terror in front of a child this is nothing like that and the government and the court in deciding that it nonetheless met the standard i think oddly relied on the hearsay statements punch that's what the court should be looking at with respect to the indie drink count and it doesn't meet the standard the same is true with respect to the menacing count menacing requires something separate from the physical incident it requires a threat and the new york case was clear on that point there was no separate threat here at the government hasn't pointed to any separate from the evidence is also insufficient on that count but with respect to the broader point the government is arguing that the court hand it was reasonable to find that the witness was fearful but the government is ignoring that unlike all the other cases the government didn't actually have any statement from the witness that she was fearful and didn't try to subpoena her allowing hearsay here really just ignores the confrontation clause in this context and that's not something this court should do the confrontation causes a significant constitutional right of the accused in order to assess the credibility of the accuser and have his his right to have the evidence heard that confrontation because right shouldn't just be