Attorney seeking clarification of law

Before hearing any arguments Wednesday in the case of a Henderson man convicted of beating his wife, Nevada Supreme Court justices wanted to know why they should consider the matter at all.

District Judge Jennifer Togliatti denied the appeal of Dennis Sarfaty in January 2008, but attorney Al Lasso said the case involves an important area of law that needs clarification by the state's high court.

"I'm not asking you to legislate from the bench," Lasso told the justices.

Deputy City Attorney Lin Ng contended that Sarfaty was attempting a second appeal of his conviction. She argued that the Supreme Court should stay out of the matter because it involves no showing that Togliatti failed to perform her duties properly.

Henderson Municipal Judge Douglas Hedger convicted Sarfaty, a retired Navy commander, of domestic battery in August 2006. The conviction came after Sarfaty's wife recanted her prior statements in the case.

A month later, Henderson Municipal Judge Ken Proctor acquitted Family Court Judge Steven Jones of the same misdemeanor charge after Jones' live-in girlfriend recanted previous statements she had given in their case.

Lasso said the disparate outcomes in two similar cases indicate Nevada's lower courts need guidance on the issue. He urged the justices to rule that uncorroborated prior accusations, when recanted under oath, are insufficient to support a conviction.

The domestic violence charge against Sarfaty stemmed from an argument he had with his wife, Elizabeth, on April 29, 2005. Hedger conducted a bench trial on Aug. 14, 2006.

According to Lasso's petition, Elizabeth Sarfaty testified that she was "very drunk" on the night of the argument and did not remember the incident well.

"Ms. Sarfaty further testified that on that night she was the aggressor as she pushed and shoved Mr. Sarfaty," Lasso wrote. "Ms. Sarfaty further testified that as she shoved Mr. Sarfaty, he positioned his hands on her head to hold her away from him, and that when he removed his hands, some of her hair was caught in his ring."

According to the document, Elizabeth Sarfaty told the judge that the accidental hair-pulling had angered her and that she "reached up and yanked some more hair out."

A Henderson police officer testified that Elizabeth Sarfaty told him that her husband had pulled her hair and kicked her.

After convicting Dennis Sarfaty, Hedger sentenced him to 90 days in jail but suspended 85 of those days. The judge also ordered Sarfaty to pay a $332 fine, perform 48 hours of community service and complete a six-month domestic battery counseling program.

Hedger granted a stay of the sentence pending the appeal process.

At Wednesday's hearing, Ng argued that prosecutors have corroboration of Elizabeth Sarfaty's prior statements: a recording of a 911 call that captured comments made by the woman and her husband.

Ng also expressed concern that the ruling suggested by Lasso would take victims back to the time when they had the burden of proving their abusers' guilt.

"As public policy, we would ask this court not to do that," Ng said.

Justice Kris Pickering noted that domestic violence often occurs in settings that lack corroborating witnesses.

Two other justices, Ron Parraguirre and Michael Douglas, sat on the panel that heard the Sarfaty arguments. The justices took the matter under advisement and did not say when they would issue a ruling.

Elizabeth Sarfaty testified during the battery trial that she and her husband had been separated since January 2006. On Wednesday, Lasso said they remain separated.

Sarfaty, an unsuccessful candidate in 2006 in the state Senate District 5 Republican primary, attended Wednesday's arguments in the Regional Justice Center. He estimated he has spent $30,000 fighting his conviction.

"My reputation means a lot to me," he said.

Contact reporter Carri Geer Thevenot at cgeer@reviewjournal.com or 702-380-8135.