People v. Algarin

• Decision Date: 05 February 1986
• Citation: 129 Misc.2d 1016,498 N.Y.S.2d 977
• Parties: The PEOPLE of the State of New York v. Albert ALGARIN, Defendant
• Court: New York Supreme Court

Page 977

498 N.Y.S.2d 977

129 Misc.2d 1016

The PEOPLE of the State of New York v. Albert ALGARIN, Defendant

Supreme Court Bronx County, Part 81.

Feb. 5, 1986.

Michael Torres, Bronx, Gail Reiner Davis, New York City, for defendant.

Mario Merola, Dist. Atty., Bronx County, Bronx (Nancy Borko and Charles Brofman, Asst. Dist. Attys., of counsel), for the People.

LAWRENCE H. BERNSTEIN, Justice:

This is a case of first impression in New York State involving the constitutionality of legislation which was recently enacted to protect certain child witnesses in sex offense prosecutions. Specifically, at issue is whether the statute which authorizes the examination of emotionally traumatized child victims by live closed-circuit television outside of the physical presence of the defendant violates the defendant's constitutional right of confrontation. The question arose at the trial of the defendant, a former teacher's aide at the PRACA day care center in the Bronx, on more than 80 counts of rape, sodomy, and sexual abuse. All 15 of the alleged victims attended the day care center and were aged four to six at time of the alleged offenses and five to seven at the time of the trial.

The statute in question amended the Criminal Procedure Law by adding thereto a new Article 65. It was approved by both houses of the New York State Legislature on July 24, 1985, effective immediately, and was made applicable to all criminal actions and proceedings commenced prior to the effective date but still pending on such date. ¹

The purpose of the legislation was to minimize the trauma associated with requiring child witnesses to testify in certain proceedings. That is, it was designed to spare young child victims of sex offenses any additional emotional distress arising out of public testimony before a jury and in the physical presence of the defendant.

To effectuate these protective ends, the statute provides in pertinent part:

65.00 Definitions

As used in this article:

1. "Child witness" means a person twelve years old or less who is or will be called to testify in a criminal proceeding, other than a grand jury proceeding, concerning an offense defined in article one hundred thirty of the penal law or section 255.25 of such law which is the subject of such criminal proceedings.

65.20 Closed-circuit television; procedure for application and grounds for determination

10. (T)he court, at the request of either party or on its own motion, may declare a child witness to be vulnerable when it determines from its own observations that a child witness who has been called to testify at a criminal proceeding is suffering severe mental or emotional harm and therefore is physically or mentally unable to testify or continue to testify in open court or in the physical presence of the defendant and that the use of live, two-way closed-circuit television is necessary to enable the child witness to testify.

11. .... If the court is satisfied that the child witness is vulnerable and that, under the facts and circumstances of the particular case, the defendant's constitutional rights to an impartial jury or of confrontation will not be impaired, it may enter an order granting the application for the use of live, two-way closed-circuit television.

12. When the court has determined that a child witness is a vulnerable child witness, it shall make a specific finding as to whether placing the defendant and the child witness in the same room during the testimony of the child witness will contribute to the likelihood that the child witness will suffer severe mental or emotional harm. If the court finds that placing the defendant and the child witness in the same room during the testimony of the child witness will contribute to the likelihood that the child witness will suffer severe mental or emotional harm, the order entered pursuant to subdivision eleven of this section shall direct that the defendant remain in the courtroom during the testimony of the vulnerable child witness.

Defendant's challenge to the statute's constitutionality, based upon an alleged violation of his right of confrontation guaranteed by the Federal and New York State Constitutions, occurred at that point in the trial when the People called Athena Perez, a 5 year old child, to testify against the defendant. Up to that time, three other young children had been able to testify in open court, without resorting to closed-circuit television, to having been sexually victimized by the defendant in the bathroom or closet of their classroom at the day care center.

Athena Perez was, however, a far more frightened and fragile child, and when it appeared that she was incapable of testifying publicly, the People moved pursuant to Section 65.20 subd. 11 for permission to use live two-way closed-circuit television.

At the time, the court heard argument from both sides concerning the constitutionality of the statute on its face as well as in its particular application to the child Athena Perez and conducted a hearing to supplement its own observations concerning the child's vulnerability. ²

Based upon its own observations as well as Athena's mother's testimony at the hearing and the statements of the prosecutor concerning her own out-of court observations of the child's behavior, the court found from the bench that Athena Perez was a vulnerable child witness; to wit, that she was visibly frightened by the jury, the defendant and the entire courtroom setting; that she was unable to answer any questions other than the neutral questions asked of her outside of the jury's presence during the preliminary voir dire on her capacity to testify as a sworn witness; that she had left the courtroom clutching her mother and crying hysterically and that the hysteria continued for a time thereafter; that she expressed terror of the defendant, and that, therefore, she was suffering and would continue to suffer great mental and emotional harm unless her testimony was taken outside of the jury's and defendant's presence via closed-circuit television.

The court further ruled orally that the statute did not violate the defendant's right of confrontation and advised counsel that a written opinion would be forthcoming to elaborate upon the court's reasoning. The trial having concluded, ³ the court now takes this opportunity to amplify its prior oral decision:

In accordance with the statute, the following procedure was utilized upon a determination that a child witness was a vulnerable child witness ⁴: the child witness testified from a small "testimonial room" that was separated from the courtroom. ⁵ In addition to the child witness, the attorneys for the People and one attorney for the defense were also in this room. ⁶ The other defense attorney was seated beside the defendant at the counsel table in the courtroom. The image and voice of the child witness, as well as those of the attorneys, were transmitted live by means of closed-circuit television to the courtroom, where the judge, jury, defendant, his other attorney and the public could listen to the testimony and observe the demeanor of the witness. Thus, the child witness was constantly aware that both the jury and the defendant were looking at her during the testimony. Simultaneously, the voice of the judge as well as the images of the jury and of the defendant, were transmitted to the testimonial room. In addition, a two-way private communication system was set up from the defense table to the testimonial room so immediate conversations could take place among the defendant and his attorneys.

It is the reasoned judgment of the court that the procedures utilized did not violate the defendant's right of confrontation and that the use of the two-way closed-circuit television under these circumstances is an acceptable method of balancing the interests of the children and the rights of the defendant while at the same time affording the jury the maximum opportunity to ascertain the truth by listening to the children witnesses and observing their demeanor.

The Sixth Amendment provides, in part, that "In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him...." This right is protected in New York not only by application of the Sixth Amendment to the States through the Fourteenth Amendment, but also by similar language in the New York Constitution. Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1067, 13 L.Ed.2d 923 (1965); People v. Egan, 78 A.D.2d 34, 38, 434 N.Y.S.2d 55 (1980); N.Y.Const. Art. I sec. 6.

Omissions and ambiguities in the historical record have fueled a wide-ranging debate about the origin, development and intended meaning of the Confrontation Clause. See e.g. California v. Green, concurring opinion of Justice Harlan, 399 U.S. 149, 176, n. 8, 90 S.Ct. 1930, 1944, n. 8, 26 L.Ed.2d 489 (1970).

In 1895, the Supreme Court, in an attempt at an historical explication of the clause stated, that:

"the primary object of the constitutional provision in question was to prevent depositions or ex-parte affidavits .... being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look upon him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.

Mattox v. U.S., 156 U.S. 237, 242-243, 15 S.Ct. 337, 339, 39 L.Ed. 409 (1895); See also Douglas v. Alabama, 380 U.S. 415, 418-419, 85 S.Ct. 1074, 1076-1077, 13 L.Ed.2d 934 (1965); California v. Green, 399 U.S. at 156-157, 90 S.Ct. at 1934. Most recently, the Supreme Court said that "the Confrontation Clause reflects a preference for face-to-face confrontation at trial and that a primary interest secured by is the right to...