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 
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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, 443 F.3d 35, 45 (2d Cir. 2006); see also Morrissey v. Brewer, 408 U.S. 471, 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.” Williams, 443 F.3d at 45. We review a district court’s balancing of the 

Rule 32.1 factors for abuse of discretion. Id. at 46. 

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. 
4 

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, 681 F.3d 94, 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 discussed supra, 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.” Carthen, 681 F.3d at 101. 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, 640 F.3d 513, 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, 8 N.Y.3d 

445, 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, 42 A.D.3d 587, 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. 

Chiddick, 8 N.Y.3d at 447. 

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

bring with it more than a little pain.” Id. Several repeated 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., 68 A.D.3d 576, 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, 95 N.Y.2d 368, 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. Johnson, 95 N.Y.2d at 373. 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, 128 A.D.3d 1174, 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, 46 A.D.3d 1232, 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, 56 Misc. 3d 51, 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. Johnson, 95 

N.Y.2d at 373. 

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