People v. Cintron
| Decision Date | 11 January 1990 |
| Parties | , 551 N.E.2d 561, 58 USLW 2479 The PEOPLE of the State of New York, Respondent, v. Armando CINTRON, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
This appeal presents questions concerning the validity and application of article 65 of the Criminal Procedure Law which authorizes a trial court, under specified circumstances, in certain sex crime cases, to permit a child witness to testify from a testimonial room over live two-way closed-circuit television. Defendant was convicted, after a jury trial, of attempted rape, first degree, attempted sodomy, first degree, and sexual abuse, first degree, based upon acts involving a four-year-old girl. During the trial, the court made an order pursuant to article 65 permitting the victim's testimony to be transmitted from a testimonial room via two-way television into the courtroom where the defendant had been directed to remain with the Judge and jury. The order was based upon the finding that the victim was a vulnerable child witness who should be permitted to give her testimony in a place removed from the courtroom and outside the presence of the Judge, the jury and the defendant.
Defendant's contentions on appeal require us to address two main issues:
(1) Whether article 65 is unconstitutional on its face because, regardless of how the statute is construed or applied, it permits a witness to testify from a place other than the courtroom and, under certain circumstances, out of the presence of defendant, thus avoiding face-to-face confrontation with the jury and with the accused in violation of a criminal defendant's State and Federal confrontation rights; or whether article 65 may be construed so that it affords the minimum protections for a criminal defendant's confrontation rights required
by the State and Federal Constitutions; and
(2) Whether, if article 65 may be construed so as to avoid facial unconstitutionality, the requirements for a determination of vulnerability under the statute, as we construe it, were satisfied in this case.
For reasons hereinafter stated, we conclude that article 65 can properly be construed so that it withstands defendant's facial constitutional attack. We hold, however, that the requisite showing for the order here was not made. Accordingly, the order of the Appellate Division, 146 A.D.2d 972, 536 N.Y.S.2d 361, should be reversed and a new trial ordered.
Article 65 of the Criminal Procedure Law, enacted by the Legislature in 1985 for an experimental period of three years (L.1985, ch. 505, § 1), 1 authorizes, in limited circumstances, the use of live two-way closed-circuit television 2 as a method of permitting certain child witnesses 3 to give testimony in sex crime cases from a testimonial room--a room which is separate and apart from the courtroom (CPL 65.00[3]. The legislative purpose for permitting such televised testimony is the avoidance of the severe mental or emotional harm that may result from requiring a child witness to testify in the public atmosphere of the courtroom concerning the intimate sexual details of the crime. Article 65 is designed to further the aim of insulating child witnesses from the trauma of testifying in open court and also, under certain conditions, from having to testify in the presence of the defendant while, at the same time, fully preserving the defendant's constitutional rights (see, Mem. of Dept. of Law, Bill Jacket, L.1985, ch. 505, at 34-38; Preiser, 1985 Practice Commentary, McKinney's Cons. Laws of N.Y., Book 11A, CPL 65.00, 1990 Supp.Pamph., at 485-486).
Before any of the televised testimony procedures authorized under article 65 may be invoked, the court must declare the child to be a vulnerable witness (CPL 65.20[1], [10]. Such a declaration of vulnerability requires that "the court, in accordance with the provisions of section 65.20, determine[ ] by clear and convincing evidence that it is likely, as a result of extraordinary circumstances, that such child witness will suffer severe mental or emotional harm if required to testify at a criminal proceeding without the use of live, two-way closed-circuit television and that the use of such * * * [television procedure] will help prevent, or diminish the likelihood or extent of, such harm" 4 (CPL 65.10[1] [emphasis added].
The required showing of likelihood of severe mental or emotional harm, it should be noted, must be the "result of extraordinary circumstances" (CPL 65.10[1] [emphasis added]. CPL 65.20 contains a list of 12 factors, which, if established by clear and convincing evidence, the court "may consider, in determining whether there are such extraordinary circumstances" (CPL 65.20[9]. These factors include (1) "the manner of the commission of the offense of which the defendant is accused was particularly heinous or was characterized by aggravating circumstances" and (2) "[t]he child witness is particularly young" (CPL 65.20[9][a], [b].
The court may grant the application for the use of the television procedure, if it "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" (CPL 65.20[11].
A determination of vulnerability does not, standing alone, permit the child witness to give televised testimony from the testimonial room in the absence of the defendant. That requires an additional, specific finding "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" (CPL 65.20[12]. If the court makes such a finding, it shall direct that the defendant will remain in the courtroom during the witness's testimony (CPL 65.20[12].
Article 65 contains two procedures for obtaining the declaration of vulnerability necessary for permitting the use of televised testimony: (1) CPL 65.20(1) under which a formal motion is made prior to trial and (2) CPL 65.20(10) under which, during trial, irrespective of whether a formal pretrial motion has been made, the court, at the request of either party or on its own motion, may declare the witness to be vulnerable. If the application is made by formal motion pursuant to CPL 65.20(1), the court, unless the material facts are conceded, is required to hold a hearing in accordance with CPL 65.20(5). There is no such specific requirement for a hearing if the application is made during trial under CPL 65.20(10). Additionally, if the application is made during trial, the statute provides that the court may make a determination "from its own observations" that a witness is suffering severe mental or emotional harm (CPL 65.20[10]; but see, n. 4, supra, at 254, at 71 of 552 N.Y.S.2d, at 564 of 551 N.E.2d).
In this case, the court made an order which permitted the victim, Jennifer, then five years old, to testify over live closed-circuit, two-way television from the testimonial room and also directed that defendant remain in the courtroom during her testimony (see, CPL 65.20[12]. Because the District Attorney had proceeded to trial without making a pretrial motion, the order was made during trial pursuant to an application under CPL 65.20(10).
Prior to making the application, the District Attorney had called Jennifer to testify as an unsworn in-court witness. A hearing was held in defendant's presence to determine whether Jennifer had the testimonial capacity to give evidence. It is not disputed that Jennifer was reluctant to testify at this hearing or that, while generally responsive to questions posed to her, she gave no verbal responses, but communicated only by shaking her head. After this hearing, the court determined Jennifer could testify as an unsworn witness and the jury was returned to the courtroom. Jennifer was called as a witness, but, when she looked in defendant's direction, she was extremely reluctant to take the stand.
Without objection, the court directed that defendant be removed from the courtroom so that it could observe Jennifer outside defendant's presence. The jury was excused. Again, Jennifer was generally responsive to questions, but she did not verbalize her answers. Defendant and the jury were brought back into the courtroom and Jennifer began to testify as an unsworn witness. The record contains indications that during this time Jennifer was fearful of defendant. For example, when the District Attorney stood in a position where Jennifer's view of defendant was blocked, she became more communicative, an observation that the Trial Judge noted on the record. Additionally, when asked if she was afraid of defendant, she nodded affirmatively. After Jennifer had been on the stand for approximately two hours, the District Attorney began questioning Jennifer about the details of the incident. She did not respond to these questions and remained unresponsive when asked to demonstrate what occurred using anatomically correct dolls.
Given the late hour, the court excused the jury for the day and the District Attorney moved, pursuant to CPL 65.20(10), to have the court declare that Jennifer was a vulnerable child witness and that CPL article 65 procedures be utilized. The court granted this application based upon its "close" observation of the child during her two hours on the stand and directed that she be permitted to testify outside defendant's presence over closed-circuit television (CPL 65.20[10], [12]. It concluded that Jennifer was suffering from "severe mental or emotional harm resulting from the incident...
To continue reading
Request your trial
-
Eze v. Senkowski
...New York courts permit experts to explain the reactions of young victims of sexual abuse. Id. at 135-36; People v. Cintron, 75 N.Y.2d 249, 552 N.Y.S.2d 68, 551 N.E.2d 561, 572 (1990). New York courts have explained that child sexual abuse syndrome "is a recognized diagnosis based upon compa......
-
Immuno AG. v. Moor-Jankowski
...Judge Simons, however, he does not view dual constitutional analysis as "illegitimate" (see, e.g., People v. Cintron, 75 N.Y.2d 249, 259, 552 N.Y.S.2d 68, 551 N.E.2d 561 [Hancock, Jr., J.]; People v. Dietze, 75 N.Y.2d 47, 50, n. 1, 550 N.Y.S.2d 595, 549 N.E.2d 1166 [Hancock, Jr., J.]; Seawa......
-
People v. Harris
... ... Alvarez, 70 N.Y.2d 375, 378, 521 N.Y.S.2d 212, 515 N.E.2d 898). This would be so whether we had determined that relief is not available under the United States Constitution in the first instance (see, e.g., People v. Cintron, 75 N.Y.2d 249, 552 N.Y.S.2d 68, 551 N.E.2d 561; Cooper v. Morin, 49 N.Y.2d 69, 424 N.Y.S.2d 168, 399 N.E.2d 1188) or on remand from the Supreme Court after it has decided the issue, as in this case (see, e.g., People v. Alvarez, supra; People ex rel. Arcara v. Cloud Books, supra; People v ... ...
-
Allstate Ins. Co. v. Mugavero
...sexual abuse (see, e.g., People v. Keyes, 75 N.Y.2d 343, 553 N.Y.S.2d 81, 552 N.E.2d 617 [child pornography]; People v. Cintron, 75 N.Y.2d 249, 552 N.Y.S.2d 68, 551 N.E.2d 561 [CPL article 65]. At least one Court has noted that "[j]ust as rape inflicts physical hurt or harm to the human bod......
-
Theodore T. Jones, the defendant's champion: reviewing a sample of Judge Jones's criminal jurisprudence.
...PROC. LAW [section][section] 660.10, 660.20, 680.10, 680.20 (McKinney 2009). (214) Id. at *1. (215) Id. at *2 (citing People v. Cintron, 75 N.Y.2d 249, 253, 551 N.E.2d 561, 552 N.Y.S.2d 68 (216) Id. (quoting Maryland v. Craig, 497 U.S. 836, 850 (1990)). (217) Id. (218) Id. at *3. (219) Id. ......
-
THE PARENT TRAP: REBALANCING PARALLEL ENFORCEMENT BETWEEN CHILD PROTECTIVE SERVICES AND LAW ENFORCEMENT.
...LAW [section] 65.10(1) (McKinney 2020); accord id. [section] 65.00(1) (defining the relevant sex crimes); see also People v. Cintron, 551 N.E.2d 561, 564 (N.Y. 1990) (interpreting a stricter, older version of the statute governing the use of "live two-way closed-circuit television in sex cr......