People v. Teicher

• Decision Date: 21 February 1980
• Citation: 73 A.D.2d 136,425 N.Y.S.2d 315
• Parties: The PEOPLE of the State of New York, Respondent, v. Marvin TEICHER, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 315

425 N.Y.S.2d 315

73 A.D.2d 136

The PEOPLE of the State of New York, Respondent, v. Marvin TEICHER, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Feb. 21, 1980.

As Amended Feb. 28, 1980.

Jacob W. Heller, New York City, of counsel (Eli Feit, New York City, with him on the briefs, Heller, Horowitz & Feit, New York City, attorneys), for defendant-appellant.

Robert M. Pitler, Syracuse, of counsel (David H. Steiner, New York City, with him on the brief, Robert M. Morgenthau, Dist. Atty., New York City, attorney), for respondent.

Before MURPHY, P. J., and KUPFERMAN, BIRNS, FEIN and MARKEWICH, JJ.

KUPFERMAN, Justice.

The defendant, a practicing dentist, was convicted of two counts of sexual abuse in the first degree, P.L. § 130.65(2), and sentenced to a term of four months imprisonment. He has been at liberty pursuant to a stay of execution of the judgment and sentence pending this appeal.

The original indictment had four counts of such sexual abuse, each involving a different complainant. A superseding indictment reduced it to three counts and amended the charge, and after a non-jury trial, defendant was convicted of two of the counts, Number I-Carson, and Number III-Beineix.

The basic charge is that defendant subjected each complainant to sexual contact while they were "incapable of consent by reason of being physically helpless". We affirm the convictions. Two of my colleagues, as set forth, would reverse on Count I as to "sexual contact", while one of them would reverse as to Count III on the search and seizure aspect of using an electronic camera and the making of a video tape.

Initially, we deal with two points on which there is no disagreement. While it was almost two years from the time of the defendant-appellant's arrest until the trial, it cannot be said that there was undue delay or that the defendant was prejudiced thereby. This is so under applicable criteria, Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101; People v. Taranovich, 37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 81, 335 N.E.2d 303, 305; People v. Prosser, 309 N.Y. 353, 360, 130 N.E.2d 891, 896. The defendant relies on the specific provisions of CPL § 30.30. However, in this well-defended case (and this may well also be said with respect to defendant's appeal), the delay was due to the various pre-trial proceedings and motions, which cannot be charged to the People alone.

It is not contended that defendant falsely diagnosed the complainants' dental conditions, or that they were persuaded against their will to use a procedure to avoid pain. In both cases, the tooth condition required dental surgery, and the sedation was in conformance with the patients' desire to avoid pain. The condemned activity involved occurred during a resuscitation procedure. The defendant claimed that he was "ventilating" the patients after sedation and that, to the extent they contended sexual abuse, they were hallucinating.

There was sufficient evidence to sustain the determination by the trial court of guilt beyond a reasonable doubt. We therefore address the two remaining questions of importance here.

For Count I, Carson, was the conduct of the defendant such as to subject the patient to sexual contact within the meaning of Penal Law § 130? We are all in agreement that the complainant was in no position to consent, nor does the defendant contend that there was consent. The dissent analyzes the situation well. We incorporate herein by reference those portions of the analysis in the dissent which sustain the applicability of the statute. Moreover, the thrust of the statute is that the "actor" is the one playing the part. The evidence established that the defendant caused the movements to be made, and the limitation which the dissent seeks to impose on the statute would allow for avoidance of prosecution by careful manipulation. Of course, the Crandall case discussed in the dissent is authority in support of the conclusion we reach here.

For Count III, Beineix, it should be noted that the videotape, which was viewed several times by our Court, was inconclusive and showed the defendant, to the extent it showed anything, to be quite circumspect in his conduct. A narrowly drawn court order provided for a camera and a covert entry for installation. There was also a separate sound recording. The camera was focused from a ceiling ventilator on the complainant in the dental chair with the defendant hovering over her engaged in the practice of his profession. It was only during the resuscitation procedure, substantially out of camera view, that the claimed criminal conduct took place. Without the testimony of the police officer, who entered the examination room, and of the complainant, the videotape would be insufficient.

We are mindful of the fact that a state may afford a defendant greater rights than those held to be necessary by the United States Supreme Court under similar Federal constitutional provisions. See Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570; New York State has, in fact, so ruled. Cooper v. Morin, 49 N.Y.2d 69, 424 N.Y.S.2d 168, 399 N.E.2d 1188 (1979); cf. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Nonetheless, to do this, there must be "a balancing of the harm to the individual resulting from the condition imposed against the benefit sought by the government through its enforcement." Cooper v. Morin, supra, 424 N.Y.S.2d at 174-175, 399 N.E.2d at 1194. Such a balancing here does not justify a New York prohibition on the admissibility of evidence obtained by means that the Federal Constitution would allow.

The use of electronic devices has been sustained by the United States Supreme Court. Dalia v. United States, 441 U.S. 238, 99 S.Ct. 1682, 60 L.Ed.2d 177 (1979); see also Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. The use of a pen register has been sustained as a lesser intrusion, U. S. v. N. Y. Telephone Co., 434 U.S. 159, 170, 98 S.Ct. 364, 371, 54 L.Ed.2d 376. Mr. Justice Haft has well considered the matter initially in People v. Teicher, 90 Misc.2d 638, 395 N.Y.S.2d 587. Further, there is no problem in other jurisdictions.

"Rule that videotapes are admissible

All the cases so far decided in which this point was raised support the rule, either expressly or by necessary implication, that a videotape film is ordinarily admissible in evidence in a criminal trial."

Anno. Admissibility of Videotape Film in Evidence in Criminal Trial, 60 A.L.R.3rd 333, § 3 at 339.

Videotape has already been used to preserve a New York State Court of Appeals session. "Cooke Committee to Draft Rules for Cameras in Courts", N.Y.L.J. 10/23/79, p. 1, cols. 3-4; "Cameras in the Courtroom", N.Y.L.J. 1/25/80, p. 1, cols. 2-3; "Cool TV for a Hot Bench", N.Y. Times Editorial, February 4, 1980, p. A18.

The new Federal Rules of Evidence were specifically amended to include "video tapes". Rule 1001(2) Definitions. See Amer.Juris. New Topic Service § 1001.1.

Can it be said that with the progress of science and all the useful arts (see Lithographic Co. v. Sarony, 111 U.S. 53, 4 S.Ct. 279, 28 L.Ed. 349), the more realistic a means of reproduction, the less likely it is to be acceptable as evidence? We conclude that, unless specifically interdicted by the Legislature, it is not to be excluded by the court.

The judgment rendered in the Supreme Court, New York County, on September 21, 1978 should be affirmed.

The case is remitted to the Supreme Court, New York County, for further proceedings to direct defendant to surrender himself pursuant to CPL 460.50 (subd. (5)).

Judgment, Supreme Court, New York County, rendered on September 21, 1978, affirmed. The case is remitted to the Supreme Court, New York County, for further proceedings pursuant to CPL 460.50(5).

All concur except MURPHY, P. J., who concurs in a separate Opinion; FEIN, J., who concurs in the Opinion of MURPHY, P. J., with respect to the first count and in the Opinions of MURPHY, P. J. and KUPFERMAN, J., with respect to the third count; MARKEWICH, J., who concurs in part and dissents in part in an Opinion; and BIRNS, J., who dissents in an Opinion.

MURPHY, Presiding Judge (concurring):

I would affirm the conviction on the first count under constraint of People v. Crandall, 53 A.D.2d 956, 386 N.Y.S.2d 108, aff'd 45 N.Y.2d 851, 410 N.Y.S.2d 66, 382 N.E.2d 766). For the reasons stated below by Justice Haft, 90 Misc.2d 638, 395 N.Y.S.2d 587. I would uphold the legality of the video surveillance. Hence, I would also affirm the conviction upon the third count.

MARKEWICH, Justice (concurring in part and dissenting in part):

I concur in the dissent of Justice Birns except for his expression concerning the use of the automatic camera; thus, I am also to reverse as to the first count and affirm as to the third. As far as applicable, I also concur in the opinion of Justice Kupferman to the extent that he would affirm conviction under the third count, but depart from him as to conviction under the first count, which should be reversed for the reasons stated by Justice Birns. My reasons for this departure from my colleague as to use of the camera may be simply stated, and they are actually based on what is contained in his own writing. Before there had been sufficient technological development in the area of sound recording to permit its almost universal concealed police use, warrants simply based on Fourth Amendment considerations were sufficient to sustain employment of these devices. State and Federal legislative enactments designed to curtail their use by imposed conditions came next, and recordings are used now quite acceptably in police work to a considerable extent. That history of development, taken in its earlier stage, now finds an analogue in camera use. A warrant, conforming to Fourth Amendment requirements and there is such a warrant here is sufficient to permit the installation here...