People v. Tissois

• Decision Date: 08 June 1987
• Citation: 131 A.D.2d 612,516 N.Y.S.2d 314
• Parties: The PEOPLE, etc., Respondent, v. Fritzlet TISSOIS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 314

516 N.Y.S.2d 314

131 A.D.2d 612

The PEOPLE, etc., Respondent, v. Fritzlet TISSOIS, Appellant.

Supreme Court, Appellate Division Second Department.

June 8, 1987.

Weil, Gotshal & Manges, New York City (Constance Cushman and Richard S. Mandel of counsel), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Nikki Kowalski and Jessica Hecht of counsel), for respondent.

Before MANGANO, J.P., and NIEHOFF, WEINSTEIN and KUNZEMAN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Goldstein, J.), rendered November 25, 1985, convicting him of rape in the second degree (two counts), sexual abuse in the first degree (two counts), and sexual abuse in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was accused of sexually abusing three children whose family temporarily shared an apartment with him during the summer of 1984. The defendant contended that the children had been coerced by their father into making the accusations. There is testimony in the record that a defense witness had, prior to the trial, contacted a child welfare agency with regard to the severe discipline imposed upon the children by their father.

The defendant maintains on appeal that several of the trial court's rulings prevented him from adequately presenting his defense. He initially challenges the trial court's refusal to turn over as Rosario material (see, People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64) the records of the Brooklyn Society for the Prevention of Cruelty to Children, a private child welfare agency which interviewed and counseled the children prior to the trial. The records of the agency were subpoenaed and reviewed in camera by the court. After hearing the testimony of the first of the three infant victims, defense counsel requested access to the records of the social worker's visits to the children for purposes of cross-examination. Counsel alleged that the notes contained statements of the complainants which might be inconsistent with their trial testimony and which might lend support to the defense theory that the complainants had been manipulated by their father. The trial court refused to turn over the records, finding, after its in camera review, "nothing whatsoever exculpatory, and nothing whatsoever, so far, that is inconsistent". Defense counsel renewed her objections at the conclusion of the People's case. The defendant's motion pursuant to CPL article 330 to vacate the verdict on the ground that the trial court had erroneously withheld the subject records was denied by order dated November 25, 1985 (Goldstein, J.). The trial court found that the defendant had failed to demonstrate " 'relevance, materiality, absence of less intrusive access, and need' " (People v. Robinson, 87 A.D.2d 877, 878, 449 N.Y.S.2d 321, quoting from Matter of Farber, 78 N.J. 259, 275, 394 A.2d 330, cert. denied sum nom. New York Times Co. v. New Jersey, 439 U.S. 997, 99 S.Ct. 598, 58 L.Ed.2d 670; see, People v. Pena, 127 Misc.2d 1057, 487 N.Y.S.2d 935).

It bears noting that the subject notes were privileged communications not subject to disclosure to the defendant or the prosecution. CPLR 4508(a) provides that a certified social worker shall not be required to disclose a communication made by his client to him in the course of his professional employment. One of the exceptions which has been carved out of the general rule is the following: "where the client is a child under the age of sixteen and the information acquired by the certified social worker indicates that the client has been the victim or subject of a crime, the certified social worker may be required to testify fully in relation thereto upon any examination, trial or other proceeding in...