714 NYS2d 876 | N.Y. Sup. Ct. | 2000
OPINION OF THE COURT
The defendant stands charged with sexual abuse in the first degree (seven counts), rape in the first degree (two counts), sodomy in the first degree (two counts), sexual abuse in the
The defendant asserts that the victim’s delay in reporting the alleged abuse, together with the fact the victim has been interviewed concerning the allegations a number of times by different people, leads to the genuine possibility that the victim’s trial testimony will be the product of fabrication caused by suggestive investigative procedures. Relying on People v Hudy (73 NY2d 40 [1988]), the defendant claims that he is entitled to a pretrial hearing to determine whether the child victim’s testimony may be so tainted by improper and suggestive questioning by investigators as to render it unreliable and inadmissible at trial as a matter of law.
Defendant’s reliance on People v Hudy (supra) is misplaced. In Hudy, the Court of Appeals held that it was error, in the course of trial, to have foreclosed defense cross-examination of the investigators’ methods of questioning the victims. (Id., at 57-58.) However, Hudy cannot be read to require a pretrial hearing on this issue. As another Trial Judge who has considered this issue noted, “in the course of reversing the defendant’s convictions and remanding the matter for a new trial, the Court of Appeals in Hudy neither held nor suggested that the new trial directed to be had therein should be preceded by a pretrial hearing of the type suggested by the defendant, or that the presence of possible suggestiveness and/or the use of disfavored interview regimes would raise a threshold (legal) issue regarding the admissibility of the children’s in-court testimony, as opposed to presenting a question of fact for the jury to consider during the course of its deliberations.” (People v Alvarez, 159 Misc 2d 963, 964 [Sup Ct, Richmond County 1993] [rejecting defendant’s request for pretrial taint hearing in child sex abuse case] [citation omitted].)
Neither the Court of Appeals nor the Appellate Division has adopted a rule requiring pretrial taint hearings in child sexual
Assuming arguendo that a pretrial taint hearing may be required in certain circumstances, in the present case, this court finds that the defendant has failed to allege facts sufficient to warrant a hearing. At most, defendant raises the specter of potential abuse of the investigation process arising out of the number of times the alleged victim was interviewed concerning the allegations of sexual abuse. He also suggests that her delayed outcry indicates suggestiveness. However, defendant has not alleged that any suggestive interview techniques were used (e.g., offering a reward to the child victim in exchange for confirming the allegations). The court is not convinced that the mere fact that the complainant spoke with investigators on more than one occasion concerning the allegations, together with the delayed outcry, raises concerns about the reliability of her testimony sufficient to require a pretrial hearing on the matter.
In sexual abuse cases involving children, it is not unusual for the outcry to be delayed. Whether because of shame or fear, children often delay reporting or fail entirely to report abuse.
Since neither the Court of Appeals nor the Appellate Division has spoken definitively on the matter, it is far from clear whether a pretrial taint hearing is required under any circumstances in New York. There is a compelling rationale for leaving the issue of suggestiveness to the trial jury. The law of New York evinces a strong interest in protecting complainants in sexual assault cases — particularly, child witnesses — from intimidation. (See, e.g., People v Glover, 60 NY2d 783 [1983] [trial court’s limited closure of courtroom during rape victim’s testimony was justified by need to prevent disruption during sensitive testimony], and People v Joseph, 59 NY2d 496, 498 [1983] [trial court properly excluded all spectators, including defendant’s family and Mends, from courtroom during sodomy victim’s testimony on ground that closure would “foster the truth-discovery process”]; see also, CPL 65.00 et setq. [provides that vulnerable child witness may testify viá closed circuit television], and CPL 60.42 [places limits on admissibility of evidence of victim’s sexual conduct in sex offense cases].) Permitting defendants to litigate the taint issue at a pretrial hearing, rather than leaving the issue for the jury to resolve at trial, runs contrary to this interest.
In all likelihood, the scope of the hearing would encompass practically the entire investigation of the case. The list of evidence cited by the court in Michael M. (162 Misc 2d, supra, at 812) as relevant to the taint determination — “any record of the interviews themselves (notes, audiotapes, videotapes, etc.),
This court has examined the Grand Jury minutes, along with the complainant’s videotaped testimony. Neither the minutes nor the videotape evince any indicia of undue suggestiveness or overreaching by the prosecutor or investigators. Counsel can explore aspects of the child’s capacity to tell the truth via a pretrial competency hearing. Furthermore, in accordance with People v Hudy (supra), defense counsel will have a full and fair opportunity at trial to cross-examine the victim and the investigators concerning any alleged attempt to influence the
Therefore, and for the foregoing reasons, the motion for a pretrial taint hearing is denied.
. (Cf., People v Kemp, 251 AD2d 1072 [4th Dept 1998], lv denied 92 NY2d 900.) In Kemp, the Appellate Division upheld the trial court’s denial of a pretrial taint hearing, “ ‘at least in the absence of any nonspeculative allegations of undue suggestion’.” (Id., at 1072-1073, quoting People v Alvarez, 159 Misc 2d, supra, at 965 [emphasis supplied].) However, the appellate court did not go so far as to hold that a hearing would have been required had the defendant made substantial allegations of undue suggestion.
. An additional reason for strictly limiting, if not foreclosing, the availability of pretrial taint hearings is the potential for their abuse as discovery devices.