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The People &C v. Khemwattie Bedessie

March 29, 2012

THE PEOPLE &C., RESPONDENT,
v.
KHEMWATTIE BEDESSIE, APPELLANT.



The opinion of the court was delivered by: Read, J.:

This opinion is uncorrected and subject to revision before publication in the New York Reports.

In this appeal, we are asked for the first time to consider the admissibility of expert testimony proffered on the issue of the reliability of a confession. While in a proper case expert testimony on the phenomenon of false confessions should be admitted, the expert here did not propose testimony relevant to this defendant or her interrogation. As a result, the trial judge did not abuse his discretion when he declined to hold a Frye hearing to assess whether any principles about which the expert proposed to testify were generally accepted in the scientific community, or to permit the expert to testify.

I.

Defendant Khemwatie Bedwessie, who worked as a teacher's assistant at Veda's Learning World in Queens, New York, is alleged to have sexually abused a four-year-old boy left in her care. In particular, she is accused of pressing the boy's hand to her partially exposed breast, and touching his penis on three separate occasions between January 2 and February 11, 2006. During the last of these sexual encounters, defendant is also alleged to have placed the boy's penis against and into her vagina. Suspicion that defendant had sexually abused the boy first surfaced on February 19, 2006, a Sunday. The boy, who was recovering from a virus, had developed a rash in his rectal area. After his mother finished bathing him that evening, he repeatedly complained of itching, causing his mother to ask him if anyone had touched him in his "private areas." The mother had asked her son this question before, and he had always replied "no, mommy." But this time, the boy answered "yes," that "Miss Anita," his name for defendant (along with "teacher"), "went up and down, up and down on his 'pee-pee.'" He asked his mother not to tell anyone, though, because "teacher" wanted him to keep this secret.

The mother sought medical attention for her son the next day. When she arrived at the hospital emergency room (the medical practice where she usually took him was closed for the President's Day holiday), she pulled the nurse aside and related what her son had revealed to her the night before. When examining the boy, the nurse asked him what happened at school. He said that Miss Anita had touched her "pishy" to his "pishy." The mother explained that "pishy" was her four-year old's word for penis. The nurse asked the boy how Miss Anita had touched him, and he moved his hand around his penis in a circular fashion. The nurse notified the attending physician, who also examined the boy, and contacted the hospital's social worker. Hospital personnel got ahold of the police, who escorted the mother and the boy to the Queens Child Advocacy Center, where the boy underwent another medical examination. There they also met with Detective Ivan Bourbon. A 20-year police force veteran, Detective Bourbon was at the time working in the Queens Child Abuse Squad, which deals with allegations of physical and sexual abuse, neglect and assaults against children under 11 years of age.

Detective Bourbon was assigned to investigate this matter; he started out by gathering background information on the day care facility's owner and employees, generally by conducting various computerized searches. He visited the facility for the first time at night on February 21 or 22 (he was working the night shift that week), just to observe the building. Detective Bourbon returned at midday on February 27, 2006, accompanied by two other detectives. He knocked on the door, identified himself to the lady who answered and asked to be shown around. He saw a room where he estimated that nine to ten children were sleeping or resting on cots; he also noticed three bathrooms on the first floor -- one for boys, one for girls and one for staff. While Detective Bourbon was chatting with the lady who was giving him a tour, defendant walked in and was introduced to him as "Anita."

Then on March 1, 2006, Detective Bourbon and the two other detectives visited the day care facility again, arriving at about 10:00 A.M. This time he asked defendant to accompany him to the Queens Child Advocacy Center for an interview. She agreed. Once there, Detective Bourbon took her to the interview room, a small room with a desk, chairs and a two-way mirror. He immediately read defendant her Miranda rights, and she signed a Miranda form. Detective Bourbon then told defendant that the boy had made an allegation and "that it was very important[,] that we are here to find out the truth and find out what happened there. I know what happened, now I need to hear from your side." As he later testified at trial, Detective Bourbon did not, in fact, then have any idea what might have transpired between the boy and defendant beyond the boy's bare-bones allegation. He also later testified that he did not raise his voice, promise defendant leniency or discuss punishment at all.

According to Detective Bourbon, defendant "looked at [him] in the eyes and she looked very nervous and . . . got to slowly explain how this boy . . . was very different" from the other children at the day care facility -- that he "would come to her [and] use his hands to touch her breasts," which led to an incident that occurred around noon time in early January, and then another in late January, early in the morning. Both times, she and the boy were in the bathroom. Defendant stated that she held the boy's penis, "jerking him" while his pants were down, as she "play[ed] with herself[,] using her fingers." Defendant then described a third encounter on a Monday morning in February. This time she dropped her pants, sat on the toilet in the teacher's bathroom, and jerked the boy's penis with one hand while she brought him forward into her vagina and pushed him in and out of her until he "start[ed] doing it himself . . . almost as if he had done this before." The interview began at about 10:30 A.M. and lasted over an hour.

When defendant finished, Detective Bourbon asked her if she would sit down with him and someone from the District Attorney's office to recount on video what she had just told him. She agreed, and he contacted the Queens District Attorney's office at roughly 11:45 A.M. The detective commented that defendant, "in the early stages" of his interview with her, expressed some relief at "getting this off her chest" and "telling the truth," saying that she herself had difficulty understanding "what she had done to this child." Defendant then gave a videotaped statement in which she described the three episodes of sexual abuse in considerably greater detail. The videotaped statement began at 12:53 P.M. and ended at 1:20 P.M.

Defendant was arrested after she made her oral confession. She was subsequently indicted for first-degree rape (Penal Law § 130.35 [3] [engaging in sexual intercourse with a child under 11 years old) (one count); first-degree sexual abuse (Penal Law § 130.65 [3] [subjecting a child under 11 years old to sexual contact]) (six counts); and endangering the welfare of a child (Penal Law § 260.10 [1] [knowingly acting in a manner likely to be injurious to the physical, moral or mental welfare of a child under 17 years old]) (one count). Defense counsel moved to suppress the oral and videotaped statements as involuntary. At the end of the Huntley hearing on January 19, 2007, at which Detective Bourbon testified, Supreme Court denied the motion.

On May 29, 2007, the day before the trial was scheduled to begin, defense counsel made an application to the judge for permission to introduce the testimony of Dr. Richard J. Ofshe, an expert in the field of false confessions, on "issues such as the social science research that indicates that false confessions do exist and research regarding the correlation between the use of certain police interrogation techniques and proven false confessions." Defense counsel informed the judge that if he granted the application, the defense would need an adjournment until after June 19, 2007, when Dr. Ofshe was scheduled to return from two months in Europe.

Reasoning by analogy to our decision in People v LeGrand (8 NY3d 449 [2007]), which dealt with expert testimony on eyewitness identification, defense counsel argued that the judge should at a minimum hold a Frye hearing on the admissibility of Dr. Ofshe's proffered testimony, and urged that defendant "need[ed] an expert on this vital issue" of false confessions in order to "[m]ount a meaningful defense." His application included Dr. Ofshe's curriculum vitae and a report dated May 18, 2007. The report indicated that Dr. Oshe had interviewed defendant on March 11, 2007.

Before beginning jury selection, Supreme Court denied defense counsel's application. The judge stated that he had read the cases and memorandum submitted by counsel, and that it appeared that all or most of the decisions considered expert testimony on eyewitness identification. He commented that he was "not inclined to draw a parallel with respect to expert testimony of false confessions [and] accuracy of identification testimony," stating as follows:

"I don't see in any way, shape or form how an expert can assist . . . juror[s] in their ability to draw a conclusion from the evidence in a case by case basis [as to] whether or not a confession was falsely given. In this court's opinion jurors are completely and utterly competent to draw from their own life experiences, from their every day experiences whether or not a statement is in fact voluntary and knowingly given."

The judge further noted that, unlike the situation in "the identification cases," there was corroboration here if the jury believed the child.

During jury selection, defense counsel asked prospective jurors if they accepted the notion that "there are instances where there could be a false confession," and could "embrace that principle in the right circumstance even though there [was] not necessarily evidence of physical torture or abuse." Only one individual out of two panels of 14 prospective jurors voiced difficulty with this idea, saying that he considered it "pretty unusual that you'd get a false confession without some kind of extraordinary . . ...


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