People v. Loomis

• Citation: 172 Misc.2d 265,658 N.Y.S.2d 787
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Philip LOOMIS, Defendant.
• Decision Date: 20 March 1997
• Court: New York County Court

Page 787

658 N.Y.S.2d 787

172 Misc.2d 265

The PEOPLE of the State of New York, Plaintiff, v. Philip LOOMIS, Defendant.

Suffolk County Court.

March 20, 1997.

Long, Tuminello, Besso, Seligman, Quinlan & Werner, Bay Shore (David H. Besso, of counsel), for defendant.

James M. Catterson, Jr., District Attorney of Suffolk County, Riverhead (Ming Liu Parson, of counsel), for plaintiff.

GARY J. WEBER, Judge.

The defendant, by Notice of Motion dated February 5, 1997, has moved this Court for an Order directing the "Complainant Victims" as well as their mother to be examined and interviewed by the defendant's expert psychiatric witness, Dr. David Gardner. The People have opposed this motion and have submitted an Affirmation in Response, dated February 25, 1997 by Ming Liu Parson, Esq. The defendant has submitted a Reply Affirmation dated February 26, 1997. The materials above listed have been read and considered by the Court in rendering the determination which follows.

The defendant has retained the services of Dr. Richard Gardner, a noted psychiatrist, for the purpose of evaluating the complainants and their mother in an effort to determine if the complainants' reports of sexual abuse were fabrications which have been motivated by the "Parental Alienation Syndrome".

Among other things, the defendant contends that he is involved in a bitter divorce proceeding with his wife, Susan Loomis, and that, inasmuch as she has had custody of the infant children during the pendency of the proceedings, she has had the opportunity to poison the minds of the children to the degree that these charges have been "trumped up" against him so as to facilitate the purposes of his estranged wife in bringing down the defendant by whatever means available.

Dr. Gardner, it is urged, is an expert at ferreting out such deceit but needs to interview the accusing children as well as the defendant and his wife in order to make a determination as to the validity of the charges.

New York has not definitively addressed the issue of whether a defendant can compel a psychiatric examination of a witness. See People v. Earel, 89 N.Y.2d 960, 655 N.Y.S.2d 859, 678 N.E.2d 471, affirming People v. Earel, 220 A.D.2d 899, 632 N.Y.S.2d 689. According to Earel the threshold question is whether the defendant has demonstrated that such an examination, even if authorized in law, is required to ensure a fair trial. It is only if the defendant's application should pass this threshold test that the right of the defendant to compel a psychiatric examination might attach. Id., see also People v. Passenger, 175 A.D.2d 944, 572 N.Y.S.2d 972, and People v. Baier, 73 A.D.2d 649, 422 N.Y.S.2d 734.

The "Parental Alienation Syndrome", as far as this Court can divine from the case law and the papers submitted, comes into existence when one parent uses his/her influence with his/her child to undermine the relationship between the child and the other parent. It typically arises when the parents are engaged in divorce proceedings or a custody dispute. The fact that a child, and in particular a child of tender years, might be subject to such undue influence and have his or her judgment and perceptions compromised by such conduct is a matter of common understanding and experience. Without doubt, under the circumstances, the topic will be the subject of thorough cross examination and the Court cannot conceive of a jury panel, under the circumstances of this case, that would disregard the prospect of undue influence by the custodial parent on the children, whether there was expert testimony raising the specter of such undue influence or not. The defendant, nonetheless, seeks to obtain an expert evaluation to "determine whether the accusations meet the criteria for true accusations or the criteria for false accusations" (Defendant's Exhibit B), and to introduce the results, if favorable to his position, as evidence before the trial jury to be empaneled in this matter.

Testimony concerning "Parental Alienation Syndrome" has been admitted in courts in some states. ¹ However, no cases have been found in New York allowing for the admission of testimony concerning the "Parental Alienation Syndrome". Indeed, in Florida, a Court applying the Frye rule held that Dr. Gardner's "Sex Abuse Legitimacy Scale" was not generally accepted and was inadmissible. Page v. Zordan, 564 So.2d 500 (Fla.Dist.Ct.App.). See also Sherman, Gardner's Law: A Controversial Psychiatrist and Influential Witness Leads the Backlash Against Child Sex Abuse 'Hysteria', Nat'l Law Journal Aug. 16, 1993 p. 1, col. 2.

New York practice does not allow experts to offer an opinion on the ultimate issue of fact as to whether sexual abuse has occurred. The issue is strictly reserved to the trier of fact. People v. Taylor, 75 N.Y.2d 277, 552 N.Y.S.2d 883, 552 N.E.2d 131 (1990). The defendant's expert purports to make such a determination by determining if a particular accusation has the criteria of a truthful accusation or a false accusation. (Defendant's Exhibit B)

The defendant also urges that "C.P.L. Section 240.40(1)(c) as well as the Fourteenth Amendment gives this Court the discretion to order discovery to inspect any of the property which the People intend to use at the trial, upon a showing by the defendant that discovery with respect to such property is material to the defendant and that the request is reasonable". (Affirmation of David H. Besso, Esq. in support of Motion February 4, 1996, paragraph 5).

It has long been held that C.P.L. Article 240 is to be strictly construed. When a statute is enacted which is in derogation of the common law, it must be strictly construed. People v. Marrero, 69 N.Y.2d 382, 387, 515 N.Y.S.2d 212, 214, 507...