People v. Michael M.

• Decision Date: 16 September 1994
• Citation: 162 Misc.2d 803,618 N.Y.S.2d 171
• Parties: PEOPLE of the State of New York, Plaintiff, v. MICHAEL M., Defendant.
• Court: New York Supreme Court

Page 171

618 N.Y.S.2d 171

162 Misc.2d 803

PEOPLE of the State of New York, Plaintiff, v. MICHAEL M., Defendant.

Supreme Court, Criminal Term Kings County, Part 22.

Sept. 16, 1994.

Eric Winston, Asst. Dist. Atty., Charles J. Hynes, Dist. Atty., for people.

Nanette Kripke of the Legal Aid Soc., Brooklyn, for defendant.

ROBERT S. KREINDLER, Justice.

Defendant moves for a pretrial hearing to determine whether the complainant's potential trial testimony should be suppressed as the product of a suggestive interview procedure by a physician treating the infant complainant. Defendant also requests production of certain police reports (for which defendant attached subpoenas to the instant motion), records of Family Court proceedings, New York County (N1880-6/86), and Kings County (Na 407/9 and Na 1502/94 [currently pending], and records of the Child Welfare Administration (CWA) (formerly "BCW" and "SSC").

On February 10, 1994, the Grand Jury indicted appellant for Rape in the First Degree (Penal Law § 130.35), Sexual Abuse in the First Degree (Penal Law § 130.65), Incest (Penal Law § 255.25), and Endangering the Welfare of a Child (Penal Law § 260.10). These charges arose from allegations made by the defendant's half-sister (born 12/6/84) that defendant engaged in sexual conduct with her on the afternoon of December 31, 1993.

In determining this motion, the court has considered the defendant's motion papers and the People's papers in response.

Facts

Defendant was arrested in this case on January 1, 1994. Defendant's mother, Lucille M., and John C., his mother's putative boyfriend, were also arrested on similar charges that day. The complaint report lists Brenda M. as the "victim", and Ralph M., the defendant's stepfather and Brenda's father, as "reporter".

The arrests arose during a hotly contested custody/visitation dispute between Lucille M. and Ralph M.

There is here a family history of abuse. In 1986, the defendant and his four half-siblings were removed from their parents' custody. Physical abuse findings were entered against Ralph M. (the "reporter" in this case); a finding of failure to protect the children from Ralph M.'s abuse was entered against Lucille M. At around the same time, Ralph M. allegedly sexually abused defendant and allegedly sexually abused Brenda M. in defendant's presence.

At the time of this alleged incident, the children, including the defendant and the complainant, were living with their mother and not the stepfather, Ralph M.

Brenda M. was examined at Kings County Medical Center on January 1, 1994, by R. Reddy, M.D., who found evidence of "old" sexual abuse consisting of a hymenal tear. No Vitullo kit was used to test for the presence of semen. Brenda was later examined by R. Switzer, M.D., ^* who noted in Brenda's medical record that Ralph M. had told the police that he suspected that Brenda had been sexually abused by the defendant. He also noted that:

When child was asked why do you think they brought you to the emergency room on January 1st and why you were brought to our clinic she said that she didn't know. I then told her she was brought in because the police suspected she was touched on her vagina by her 16-year-old brother Michael. I then asked her, "did Michael touch you down there?"

To which Brenda answered "yes".

While this interview was apparently not the first interview of the complainant, the papers do not indicate the nature of the questioning at the other interviews.

Power to Entertain the Instant Motion

Since suggestive questioning of a witness by a civilian physician is not a ground for suppression listed in CPL article 710, defendant's hearing request is not specifically authorized by the CPL.

Courts have recognized that evidentiary decisions relating to the admission of potentially prejudicial evidence can be made through pretrial motions, often referred to as motions in limine (see, Annotation, 63 ALR 3d 311, § 2). The power of a trial court to grant such a motion is normally not mentioned in procedural rules, but found in the inherent power of a trial court to admit or exclude evidence (see, e.g., Luce v. United States, 469 U.S. 38, 41 n. 4, 105 S.Ct. 460, 463 n. 4, 83 L.Ed.2d 443 [practice developed pursuant to district court's inherent authority to manage the course of trials]; United States v. Valencia, 826 F.2d 169, 171 [2d Cir, 1987]; United States v. Downing, 753 F.2d 1224, 1241 [3rd Cir, 1985]; Emory v. State, 420 N.E.2d 883, 884 [Ind.]; Burrus v. Silhavy, 155 Ind.App. 558, 293 N.E.2d 794, 796-798).

In New York, rules of evidence are based on the common law (see, People v. Hughes, 59 N.Y.2d 523, 542, 466 N.Y.S.2d 255, 453 N.E.2d 484). A court's power to admit or exclude evidence under the rules of evidence is inherent in its power to function as a court (see, Riglander v. Star Co., 98 App.Div. 101, 90 N.Y.S. 772, aff'd 181 N.Y. 531, 73 N.E. 1131; see also, People v. Hughes, supra, 59 N.Y.2d, at 542-545, 466 N.Y.S.2d 255, 453 N.E.2d 484; cf., A.G. Ship Maintenance Corp. v. Lezak, 69 N.Y.2d 1, 511 N.Y.S.2d 216, 503 N.E.2d 681). Also, inherent in determining the admissibility of evidence is the power of the court to decide when and how the admissibility should be determined (i.e., during trial or pretrial; with or without a hearing, see, People v. Hughes, supra; Cohn v. Borchard Affiliations, 25 N.Y.2d 237, 249-250, 303 N.Y.S.2d 633, 250 N.E.2d 690; Grisi v. Shainswit, 119 A.D.2d 418, 421, 507 N.Y.S.2d 155; see also, Feldsberg v. Nitschke, 49 N.Y.2d 636, 643, 427 N.Y.S.2d 751, 404 N.E.2d 1293 ["Although there exist general rules for the conduct of trials, deviation from these rules may be necessary to fit the circumstances of a particular case"]; People v. Olsen, 34 N.Y.2d 349, 353, 357 N.Y.S.2d 487, 313 N.E.2d 782; cf., People v. Douglass, 60 N.Y.2d 194, 205, 469 N.Y.S.2d 56, 456 N.E.2d 1179 [courts' inherent power does not extend to dismissing information sua sponte ].

Courts have recognized the right of a trial court to determine evidentiary matters at pretrial hearings, despite the lack of specific authorization in the CPL (see, e.g., People v. Wesley, 83 N.Y.2d 417, 424, 611 N.Y.S.2d 97, 633 N.E.2d 451 [pretrial hearing to determine admissibility of DNA evidence]; People v. Tunstall, 63 N.Y.2d 1, 479 N.Y.S.2d 192, 468 N.E.2d 30 [pretrial hearing to determine admissibility of pre-hypnotic recollection]; People v. Hughes, supra, 59 N.Y.2d at 542-545, 466 N.Y.S.2d 255, 453 N.E.2d 484 [same]; People v. Ventimiglia, 52 N.Y.2d 350, 362, 438 N.Y.S.2d 261, 420 N.E.2d 59 [pretrial hearing to determine admissibility of prior uncharged crimes]; People v. Sandoval, 34 N.Y.2d 371, 374, 357 N.Y.S.2d 849, 314 N.E.2d 413 [pretrial hearing to determine prosecutor's use of prior conviction to impeach the defendant]; People v. Wilson, 182 A.D.2d 734, 582 N.Y.S.2d 462 [pretrial hearing to determine audibility of tape recording]; People v. Colon, 180 A.D.2d 876, 879, 580 N.Y.S.2d 95 [pretrial hearing on admissibility of breathalyzer test result].

The court finds that it has the inherent power to entertain defendant's motion, despite the lack of specific statutory authority.

Merits of Defendant's Motion

Although the court has the power to entertain the motion, this does not mean that the court should exercise such authority.

A reliable determination of guilt or innocence is the essence of a criminal trial (People v. Adams, 53 N.Y.2d 241, 251, 440 N.Y.S.2d 902, 423 N.E.2d 379). At trial, all relevant evidence is generally admissible unless its admission violates an exclusionary rule (People v. Scarola, 71 N.Y.2d 769, 777, 530 N.Y.S.2d 83, 525 N.E.2d 728). Many of the exclusionary rules are based on determinations of the reliability of the evidence. For example, hearsay is excluded because it is presumptively unreliable (People v. Brensic, 70 N.Y.2d 9, 14, 517 N.Y.S.2d 120, 509 N.E.2d 1226; see also, Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638).

This concern for evidentiary reliability or trustworthiness is also seen in rules relating to the admission of statements made while voluntarily intoxicated (People v. Schompert, 19 N.Y.2d 300, 306, 279 N.Y.S.2d 515, 226 N.E.2d 305, cert. denied 389 U.S. 874, 88 S.Ct. 164, 19 L.Ed.2d 157), statements made during sleep (People v. Jones, 165 A.D.2d 103, 109, 566 N.Y.S.2d 590; People v. Smith, 104 A.D.2d 160, 163-164, 481 N.Y.S.2d 879), scientific evidence (People v. Wesley, supra, 83 N.Y.2d at 422-423, 611 N.Y.S.2d 97, 633 N.E.2d 451; Daubert v. Merrell Dow Pharms., Inc., 509 U.S. ----, ----, 113 S.Ct. 2786, 2795, 125 L.Ed.2d 469), identification testimony (People v. Adams, supra, 53 N.Y.2d at 251, 440 N.Y.S.2d 902, 423 N.E.2d 379), and hypnotically induced testimony (People v. Hughes, supra, 59 N.Y.2d at 535, 466 N.Y.S.2d 255, 453 N.E.2d 484). As such, the reliability of evidence is a prerequisite for its admission (see, People v. Blackman, 110 A.D.2d 596, 598, 488 N.Y.S.2d 395; see also, Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140).

Here, the issue is whether suggestive questioning of a child complainant by a civilian rendered the child's trial testimony so unreliable that it must be suppressed.

Where the evidence involves the in-court non-hearsay testimony of a witness, courts have generally found the oath and cross-examination sufficient tests of reliability to allow admission of the testimony (People v. Brensic, supra, 70 N.Y.2d at 14, 517 N.Y.S.2d 120, 509 N.E.2d 1226). Testimony involving eyewitness identification and testimony resulting from hypnosis are exceptions to this general rule (see, People v. Hughes, supra, 59 N.Y.2d at 535, 466 N.Y.S.2d 255, 453 N.E.2d 484; People v. Adams, supra, 53 N.Y.2d at 249-251, 440 N.Y.S.2d 902, 423 N.E.2d 379). More important, the testimony in both situations is suppressed because it is rendered unreliable by suggestive procedures (People v. Hughes, supra; People v. Adams, supra ). The suggestive procedures...