People v. Tohom
969 N.Y.S.2d 123
N.Y. App. Div.2013Background
- Defendant charged with predatory sexual assault against a child and endangering the welfare of a child based on alleged repeated sexual abuse of his daughter (J) from about age 11–15.
- The People moved to allow "Rose," a trained golden retriever comfort/therapy dog, to sit with J while she testified to reduce anxiety and enable testimony; J’s therapist supported the accommodation.
- Defense objected, arguing the dog would prejudice the jury, elicit sympathy, imply truthfulness, and that the statute did not authorize an animal; defense declined to request a Frye hearing or propose alternate jury instructions.
- County Court granted the People’s motion under Executive Law § 642-a and the court’s inherent trial-control power, gave limiting instructions to the jury, and the dog accompanied J during testimony without incident.
- Jury convicted the defendant; postverdict CPL 330.30 motion to set aside was denied; defendant appealed raising statutory, due process, confrontation, Frye, and evidentiary objections.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Executive Law § 642‑a authorizes a comfort dog to accompany a child witness at trial | §642‑a requires courts to be sensitive to child witnesses’ emotional stress and permits accommodations; dog aids testimony | §642‑a does not specifically authorize an animal at trial and court usurped legislative role | Court held §642‑a (esp. §4) and legislative intent permit discretionary accommodations like a comfort dog for child victims under 16; J (15) fit statute’s purpose |
| Whether allowing the dog violated defendant’s due process/fair‑trial rights (prejudice) | Dog merely reduced witness anxiety; court can limit prejudice by instructions | Dog would trigger juror sympathy, imply truthfulness, and be inherently prejudicial | Court applied balancing test; dog not inherently prejudicial, jury instructed, no actual prejudice shown; accommodation upheld |
| Whether dog’s presence violated confrontation/cross‑examination rights | N/A (People sought to enable testimony) | Dog impeded observation or undermined jury’s ability to judge credibility, impairing confrontation | Court found no interference with confrontation: counsel cross‑examined fully, no objections at trial, and no showing the dog impeded observation |
| Whether a Frye hearing was required to admit evidence regarding therapeutic effect of dogs | Scientific literature and practice support dogs’ calming effect; findings were not novel scientific testimony | Frye required before admitting such proffered scientific basis | Argument unpreserved and meritless; existing literature and anecdotal support plus lack of request for Frye meant no remand needed |
Key Cases Cited
- Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (standard for novel scientific evidence admissibility)
- People v. White, 73 N.Y.2d 468 (N.Y. 1989) (statutory interpretation governed by legislative intent and statutory text)
- People v. Gutkaiss, 206 A.D.2d 628 (App. Div. 3d Dep't 1994) (Executive Law §642‑a supports allowing a child to have a comfort item while testifying)
- Holbrook v. Flynn, 475 U.S. 560 (U.S. 1986) (courtroom arrangements judged by whether they present an unacceptable risk of impermissible factors)
- Coy v. Iowa, 487 U.S. 1012 (U.S. 1988) (Confrontation Clause violation where screen prevented defendant from seeing witness)
- People v. Guzman, 76 N.Y.2d 1 (N.Y. 1990) (jurors presumed to follow trial court instructions)