People v. Freshley

• Decision Date: 27 May 1982
• Parties: The PEOPLE of the State of New York, Respondent, v. Herman FRESHLEY, Defendant-Appellant. The PEOPLE of the State of New York, Respondent, v. Charles ACKLIN, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 73

451 N.Y.S.2d 73

87 A.D.2d 104

The PEOPLE of the State of New York, Respondent, v. Herman FRESHLEY, Defendant-Appellant.

The PEOPLE of the State of New York, Respondent, v. Charles ACKLIN, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

May 27, 1982.

Carol Ethridge Gette, New York City, of counsel (Norman Barclay, New York City, with her on the brief; Robert M. Morgenthau, New York City, attorney), for respondent.

Philip L. Weinstein, New York City, of counsel (William E. Hellerstein, New York City, attorney), for defendant-appellant Freshley.

Lofton P. Holder, New York City, for defendant-appellant Acklin.

Before MURPHY, P. J., and SANDLER, BLOOM, FEIN and ASCH, JJ.

FEIN, Justice.

Defendants stand convicted, after a jury trial, of robbery in the second degree. Defendants' convictions are founded upon events which took place on March 19, 1979 when they, aided by another person, allegedly robbed Steven Daniels.

The issue on appeal has its source in the fact that the complaining witness is mentally retarded and suffers from a speech impediment. At the Wade hearing the court conducted an inquiry as to whether Daniels understood the nature of an oath, the classic inquiry as to whether he was competent to testify. Over objection, the court ruled that Daniels was competent.

Prior to trial the prosecution moved to allow Daniels' school psychologist to testify on the People's direct case about the degree of Daniels' impairment. Among other things, the prosecutor sought to have the psychologist render an expert opinion as to how Daniels' mental retardation affected his capacity to see, perceive, conceptualize and make judgments. The prosecutor further wanted the psychologist to give in detail both a description and the results of the various intelligence and other tests which had been given to Daniels, and to render an evaluation in comparison with other persons at the occupational training center which Daniels attended. In short, the psychologist's diagnosis and his interpretation of the diagnosis was offered to demonstrate Daniels' ability to observe and to report on his observations.

The trial justice, Honorable Sheldon Levy, ruled that such broad testimony would not be permitted. It would impinge upon the Court's duty to determine the competence of the complaining witness to testify, as well as the jury's classic function to determine credibility (People v. Parks, 41 N.Y.2d 36, 48, 390 N.Y.S.2d 848, 359 N.E.2d 358). In a careful and thoughtful opinion (People v. Acklin, 102 Misc.2d 596, 424 N.Y.S.2d 633), Justice Levy ruled that pursuant to People v. Parks, supra, the psychologist's testimony as an "interested observer" was admissible on a limited basis:

"The interested observer witness should be allowed to testify briefly as to his background, qualifications and present employment, if any; his past professional or personal contacts with and knowledge of the impaired witness; the nature and degree of the impairment, including the condition of the witness based upon direct observation; scientific and objective data, including mental development age, intelligence test quotient and functioning grade level of the handicapped witness; the infirm witness' work record if any; and observable societal and personality traits of the impaired." (People v. Acklin, supra, 102 Misc.2d at p. 601, 424 N.Y.S.2d 633.)

In opposing the People's application, defense counsel requested that if, over objection, the court concluded that a psychiatrist or psychologist could testify on behalf of the People, there should be an adjournment to permit the defendant to have the complaining witness examined by an independent psychologist. This request was denied by the court. The court concluded that the psychologist could testify not as an expert, but rather as "an interested observer".

The first witness called by the People was Gil Horowitz (Horowitz), Daniels' school psychologist, who had been working with Daniels for about one year before trial. He had met with Daniels approximately twelve times and administered various psychological tests to him. Horowitz testified that Daniels achieved a score of "61 overall" on the Wexler Intelligence Test. Horowitz explained to the jury that this meant that Daniels was "near normal mildly retarded", with a "speech impediment which makes him seem less able". Horowitz further testified that although Daniels was physically 20 years of age, he had a mental age of approximately 14 or 15.

On cross-examination, Horowitz acknowledged that he did not know whether Daniels could read. The tests used did not require reading ability. According to Horowitz, a mildly retarded person could perform mental tasks but would do them "slower than normal".

Defendant Freshley's attorney again objected to Horowitz testifying at the trial and reiterated her demand for the tests employed by Horowitz upon the ground that to refuse to make such tests available denied Freshley his right of confrontation. Defendant Acklin's attorney declined to cross-examine Horowitz.

Daniels testified that he attended the Manhattan Occupational Training Center, a school for those with learning problems, and was employed in a factory under a work-study program at school. On March 19, 1979, after attending school in the morning, he went to Times Square. As he walked east on 41st Street between Seventh and Eighth Avenues, he was approached by defendants and a woman. He had seen Acklin once before standing on Eighth Avenue with a bottle of wine, but did not recognize Freshley or the woman. Daniels testified that after giving one of the men a cigarette in response to a request, the men pushed him against the wall and the woman took $14 from his wallet. She returned the wallet at Daniels' behest. Acklin warned Daniels not to go to the police or "I'll blow your head off".

After the robbery, Daniels walked to the police substation at 42nd Street and reported it to Police Officer Schroeder. Schroeder and his partner walked with Daniels back to 41st Street to look for the robbers. There was a discrepancy between Daniels' testimony and that of Schroeder as to the exact sequence of events thereafter. It is clear, however, that after about 1/2 hour, Daniels pointed out Freshley who was standing with a group of people near a liquor store. Freshley, holding a bottle of wine, was wearing sunglasses and a hat. Schroeder arrested Freshley. A search revealed no money.

Daniels testified that two days later, in the same area on 41st Street, he saw Acklin, the taller robber whom he had recognized at the time of the robbery. Daniels went to 42nd Street and again found Officer Schroeder. The officer and Daniels walked back to 41st Street where Daniels pointed Acklin out in a crowd as the second robber. Schroeder arrested Acklin. Schroeder testified that he was newly assigned to the Times Square area in March 1979, and that neither he nor Daniels had ever seen each other before the robbery. Schroeder was one of approximately 10 to 15 officers assigned to the Times Square area on a given day, and one of 100 different officers on duty in the course of a week. Schroeder's description of the robbers differed somewhat from that of Daniels. Schroeder testified that because of Daniels' speech impediment and his excitable condition, the officer had difficulty understanding him. He had to ask Daniels several times to calm down and repeat himself. Apparently as a consequence, the descriptions which the police officer wrote on the complaint report differed from Daniels' description at trial. Thus the heights of the two robbers and their respective ages were at variance. Schroeder's report indicated that the woman was 3 feet tall because Daniels had described her as "a short little girl" and had held out his hand "at shoulder length". According to Schroeder, he had asked Daniels if the woman was a midget and Daniels had responded that she was. In his testimony, Daniels denied telling Schroeder that the woman was a midget.

The issues on appeal are: (1) whether the trial court abused its discretion by allowing a mentally retarded witness to testify under oath, over objection, where the court's inquiry showed the witness had difficulty in clearly articulating the meaning of an oath, the difference between the truth and a lie, and the significance of telling a lie; (2) whether defendants' rights were violated by the trial court's ruling which permitted the prosecution in its direct case to elicit testimony from a psychologist explaining the complaining witness' mental retardation; and (3) whether the court erred in refusing to permit a defense psychologist to examine the complainant or in refusing to direct the prosecution to furnish defendants with the tests and other data used by the psychologist in evaluating the complaining witness.

We are all agreed that the trial judge properly found that Daniels was competent to testify. In our view, the court properly found that Daniels had sufficient intelligence to understand the nature of an oath and to give a reasonably accurate account of what he saw and heard respecting the pertinent subject matter. He had the requisite minimum conception of the obligations of an oath and the consequences of false testimony (People v. Parks, supra, 41 N.Y.2d at 45-46, 390 N.Y.S.2d 848, 359 N.E.2d 358)....