| On November 19, 2007, police arrested 43-year-old Jean Cantave and charged him with assaulting 33-year-old Andre Elbresius, who said Cantave bit off part of his ear during a confrontation at Cantave’s used car lot, God First auto sales, in Queens, New York.
In October 2009, Cantave went to trial in Queens County Supreme Court. He was charged with second-degree assault and third-degree assault. The prosecution’s case relied primarily on testimony from Elbresius, his wife, Beatrice, and Dr. Mary Doumas.
Elbresius testified that on November 5, 2007, Cantave, a neighbor whom he had known for about a year, asked for a favor. Cantave wanted Elbresius to drive him to a car auction on Long Island. Elbresius said that Cantave agreed to give him money for gas because his vehicle, a Ford Explorer, was low on fuel.
He testified that he waited in his vehicle when they got to Patchogue, about a 90-minute drive from Queens, while Cantave went to the auction. When Cantave came out, Elbresius said he asked if Elbresius had any tools. Elbresius said he had some in the back which was unlocked.
Elbresius said that Cantave retrieved some tools and put them back about five or 10 minutes later. Elbresius said he then saw Cantave drive away and noticed that the rear license plate for the Explorer had been put on the back of the car that Cantave had just purchased at the auction.
Elbresius said he tried to catch up to Cantave, but could not because his Explorer vibrated badly at speeds over 50 miles per hour due to a previous accident. However, Elbresius said he spotted Cantave at a gas station and pulled up, yelling at him that he was almost out of gas. He said Cantave threw a $20 bill out the window and took off.
Elbresius told the jury that he drove home to take his wife to work. When she got off work later that evening, he called Cantave and asked to meet. Elbresius said he was concerned that Cantave might have gotten a citation that would be linked to the license plate from the Explorer.
He said he and Beatrice drove to the car lot and confronted Cantave, who gave him his license plate back. They began exchanging words. Then, Cantave pushed Elbresius and Elbresius pushed him back.
Beatrice got out of the car and stood between them and began telling them to let it go and go home. She said that Cantave suddenly “lunged” over her shoulder and bit Elbresius’s left ear. She said neither she nor her husband could dislodge Cantave for 30 seconds to a minute. And when Cantave finally let loose, he bit the middle finger of Elbresius’s right hand.
Beatrice and Andre said they went to a nearby hospital where a bandage was placed over his ear. Both said they were told it would be a long wait for proper treatment, in part because they did not have medical insurance and because the emergency room was crammed. They left and went to a police station where police told them to go back to the lot where they made a police report. An ambulance was summoned and took Elbresius back to the hospital where, in the early morning hours, he had surgery on his ear.
Dr. Doumas testified that Elbresius’s ear was inserted inside a slit made in the skin on the side of his head. After it healed, a graft of skin from his head was used to repair it. Because the skin had hair follicles, Elbresius would have to shave his ear regularly, she testified.
Cantave’s defense attorney sought to introduce a recording of a 911 call made by Cantave during which Cantave said he had been assaulted by Elbresius and his wife and that Elbresius had a gun. The prosecution objected, arguing that it came several minutes after the incident, giving Cantave time to come up with a cover story of self-defense.
Although Cantave claimed that he had a broken nose, bloodied mouth and a bite on his hand, he made no mention of the injuries, the trial judge noted. As a result, the judge declined to allow the tape to be played. The judge noted that unless Cantave testified, the tape would be prohibited hearsay evidence. The judge rejected the defense contention that the tape was an “excited utterance,” an exception to the hearsay prohibition.
When the defense said that Cantave wanted to testify to give his version of the incident, the prosecution said it would cross-examine about a 2008 rape conviction. Cantave had been convicted of rape and sentenced to 20 years in prison. The defense noted that the conviction was being appealed and argued that questioning Cantave about it was improper. The judge rejected that argument and said he would permit the prosecutor to question him about the rape conviction.
Consequently, Cantave did not testify. On November 2, 2009, the jury acquitted Cantave of the second-degree assault charge and convicted him of third-degree assault—a misdemeanor. He was sentenced to one year in prison to be served concurrently with the 20 year sentence in the rape case.
In 2011, the second Appellate Division reversed Cantave’s rape conviction and ordered a new trial. The court held that Cantave’s defense lawyer in the rape case had provided an inadequate legal defense by failing to introduce medical records that cast doubt on the woman’s claim that Cantave had sexually assaulted her.
And in 2012, at a retrial, Cantave was acquitted of the rape. His defense lawyer at the retrial, Lori Zeno from Queens Defenders, discovered evidence that the prosecution had failed to disclose, particularly a statement by a detective assigned to the case. In the statement, the detective said no rape had occurred.
In addition, Zeno found telephone records showing that Cantave was miles away from the location where the woman said she was attacked. After the acquittal, Cantave was released from prison.
Meanwhile, the Appellate Division upheld Cantave’s assault conviction. But in June 2013, the New York Court of Appeals reversed the assault conviction. The court held that the trial judge erroneously said the prosecution could cross-examine Cantave about the rape conviction which was still on appeal.
“We hold that the prosecution may not cross-examine a defendant about the underlying facts of an unrelated criminal conviction on appeal, for the purpose of impeaching his credibility,” the court ruled. “The trial court's ruling violated the defendant's privilege against self-incrimination with respect to the admission of the underlying facts of the rape conviction.”
Subsequently, the prosecution agreed to dismiss the case if Cantave were not arrested for six months. In 2014, when the six-month period ended, the charge was dismissed.
– Maurice Possley
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