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People v. Tohom

Supreme Court of New York, Second Department

July 10, 2013

The People of the State of New York, respondent,
Victor Tohom, appellant. Ind. No. 149/10

APPEAL by the defendant from a judgment of the County Court (Stephen L. Greller, J.), rendered July 28, 2011, in Dutchess County, convicting him of predatory sexual assault against a child and endangering the welfare of a child, upon a jury verdict, and imposing sentence. Thomas N.N. Angell, Poughkeepsie, N.Y. (Steven Levine of counsel), for appellant.

William V. Grady, District Attorney, Poughkeepsie, N.Y.

(Kirsten A. Rappleyea of counsel), for respondent.



SGROI, J."[Dogs] are such agreeable friends—they ask no questions—they pass no criticisms" (George Eliot, Scenes of Clerical Life [1857]), but do they belong in the courtroom? On this appeal, we examine the question of whether the courts of this State should permit the presence of a therapeutic "comfort dog" in a trial setting when the court determines that the animal may provide emotional support for a testifying crime victim. We conclude that this question should be answered in the affirmative.

Background/Pretrial Motion

Pursuant to a Dutchess County indictment dated December 16, 2010, the defendant was accused of committing the crimes of predatory sexual assault against a child (Penal Law § 130.96), a class A-II felony, and endangering the welfare of a child (Penal Law § 260.10), a class A misdemeanor. Specifically, it was alleged that between the summer of 2006 and November 2010, the defendant engaged in multiple acts of sexual misconduct, including frequent sexual intercourse, with his daughter (hereinafter J), who was under the age of 18 years, having been born in 1995. It was further alleged that, as a result of the defendant's misconduct, the victim twice became pregnant, and that on both occasions the defendant arranged for her to undergo an abortion.

By notice of motion dated May 12, 2011, the People sought to allow "Rose, " a Golden Retriever therapy assistance animal, or "comfort dog, " to accompany J on the witness stand while she testified at the defendant's trial. In support of the motion, the People argued that Rose had proven useful during J's interviews and therapy sessions because the presence of the dog made J more at ease and allowed her to become "more verbal." More importantly, J had expressed anxiety about having to testify and be cross-examined at trial regarding the details of the alleged abuse, and J's therapist indicated that Rose's presence would help to alleviate the apprehension, as well as the psychological and emotional trauma that such testimony might engender.

The People acknowledged that there was "no case law or statutory authority in New York for specifically allowing an assistance dog to accompany a witness to the stand, however, there was precedent for allowing a child witness to have a comfort item (e.g., a teddy bear) while testifying." The People argued that J qualified as a "special witness" under the Criminal Procedure Law, and that support for allowing Rose to be present with J while she testified could be found in Executive Law § 642-a, which allows for a "person supportive of [a] special witness'" to be "present and accessible" during the testimony of the witness.

In opposition, the defendant argued, inter alia, that Rose's presence would "clearly prejudice the jury against" him. More specifically, the defendant maintained that the dog's presence would convey to the jury that the witness is under stress as a result of testifying about the subject events, and that her stress resulted from "telling the truth." The defendant further argued that the jury would be more "sympathetic" to J if Rose were present, and that cases involving therapy dogs "overwhelmingly" involve preteen witnesses, whereas, at the time of trial, J was 15 years old. Thus, the defendant concluded that J should not be afforded the requested accommodation when she testified at trial.

The County Court scheduled a hearing on the issue of whether Rose should be permitted to accompany J and stay beside her as she testified. However, the hearing was not a scientific-evidence hearing scheduled in accordance with the dictates of Frye v United States (293 F 1013 [Ct App DC]) and, notably, the defendant never requested a Frye hearing.

At the hearing, testimony was adduced from Lori Stella, an employee of the Dutchess County Office of Child and Family Services, who stated that her title was "licensed Master of Social Work, " and that she had four years of experience working with children in the foster-care system. Stella explained that J spent the first 10 years of her life living in Guatemala, where she was raised by her maternal grandparents, that she then came to the United States at the defendant's request, that the abuse began soon thereafter, and that J had virtually no contact with her mother. Stella had been working with J since August 2010, and had seen her professionally about once per week since that time. According to Stella, J had been diagnosed by a psychiatrist with post-traumatic stress disorder as a result of the sexual abuse perpetrated upon her by the defendant. Stella also stated that J was "unable to express her emotions"; that she did not want to discuss the abuse; and that she had trouble sleeping at night. Stella observed that, during J's therapy sessions, "you can visibly see the anxiety; [J] will normally be pulling at her sleeves and not able to sit still [or] make eye contact." Stella further testified that she had utilized Rose during at least three 30-45 minute therapy sessions with J, and that the use of the dog was recommended by Stella's supervisor. Stella stated that when Rose was present, "J is a lot more verbal, just in general, about her day, her comings and goings." When Stella discussed the fact that J was to testify at trial, and would then see and confront the defendant again after having been away from him for over one year, J "started to experience some anxiety." In particular, Stella explained that J was worried and did not feel safe because of "the way that her family members have made her feel about this situation[, ]" as if she were a scapegoat. However, when Rose "placed her head on J's lap, and J began to pet her, [J] was better able to talk about [how] she felt and how she would feel safer if Rose was present with her in the courtroom."

Stella also testified that having J testify in open court about the abuse would be tantamount to "retraumatizing her and causing her to experience post-traumatic stress disorder symptoms and possibly increase those symptoms." In fact, Stella noted that, "even in therapy when J is very upset about something, she completely shuts down." In Stella's opinion, Rose's presence with J while she testified "would have a soothing impact on [J]"; would allow J to "be able to better express herself verbally"; and would "decrease her levels of physiological stress." Stella stated that it is easier for J to talk about matters "[w]hen she maintains her composure."

At the conclusion of Stella's examination and cross-examination, the People argued that Rose should be permitted to accompany J to the stand, explaining that "if Rose senses J's anxiety [she] will [simply] sit up and put her head on J's lap." Indeed, Rose had been trained since the age of eight weeks "to sense stress and anxiety and act in such a way to help reduce that" by raising herself up and offering herself to the person to be petted. The People also noted that the court could provide instructions to the jury with regard to the dog. The defendant requested that the court deny the People's motion and instead allow Stella to be present "anywhere in the courtroom, except... directly behind [the witness] at the stand."

The County Court then observed that if Stella were to sit in the back of the courtroom, J would not see her, but that if Stella were to sit near the front, "there's a far greater chance that a person can be deemed to be influencing the child's testimony than the dog, who can't speak, who can't speak to the child, [and] the child can't speak back to the dog." The court determined that Stella's presence near J could lead the witness "to inadvertently look towards her therapist for support and that could be deemed by the jury as looking for answers, and be misinterpreted that she's afraid to answer without checking with her therapist first, or that the therapist is influencing what she's about to say." The court found that "there's a far lesser chance of that happening with the dog, which has been recognized in the case law."

The County Court's Decision

In an order dated June 1, 2011, the County Court granted the People's motion. The court concluded, inter alia, that Executive Law § 642-a, "which establishes guidelines for the fair treatment of child victims as witnesses[, ]' is applicable to the 15 year-old victim in this case" since the intent of that law "is to protect children under 16 years of age who are victimized by crime" (emphasis added). The court also found that J's trial testimony was "likely to cause severe emotional, mental and psychological stress, " which "necessitates the consideration of procedures to protect [her] mental and emotional well-being while testifying." However, the court also stated that it did "not take the defendant's argument lightly that to permit Rose to accompany the victim while she is testifying may be prejudicial." Accordingly, although the court granted the People's request to allow the comfort dog to accompany J during her testimony, pursuant to Executive Law § 642-a(4), it noted that "[w]ith an appropriately fashioned instruction to the jury, any possible prejudice will be minimized, if not eliminated[, ]" and "in this regard [defense counsel is invited] to prepare proposed limiting and curative instructions [which], if appropriate... will be adopted by the court."

Trial/Sentence/Motion to Vacate Conviction

On June 2, 2011, the defendant proceeded to a jury trial before the County Court. Before J testified, the court instructed the jury as follows:

"Ladies and gentlemen, the next witness is [J] who is obviously sitting in the jury box. As you might recall, I previously spoke to you about the companion animal that's with her. As I indicated before and I reiterate to you now, during the testimony of [J] she will be accompanied by a companion dog. The decision to allow this was one the court made and you may not speculate in any way as to why that decision was made. You must not draw any inference either favorably or negatively from either side because of the dog's presence. You must not permit sympathy for any party to enter into your considerations as you listen to this testimony, and this is especially so with an outside factor such as a companion dog permitted to be present in the courtroom. Each witness's testimony must be evaluated based upon the instructions I give you during my charge and on nothing more."

The trial transcript reveals no other mention of Rose's presence during J's testimony or at any other point during the rest of the trial. The County Court repeated the above comments regarding the presence of the dog in its instructions to the jury, given prior to deliberation.

At the conclusion of the trial, the jury returned a verdict convicting the defendant of predatory sexual assault against a child and endangering the welfare of a child. On July 28, 2011, the defendant was sentenced to an indeterminate term of imprisonment of 25 years to life on his conviction of the count of predatory sexual assault against a child and a definite sentence of 1 year of incarceration on his conviction of the count of endangering the welfare of a child, to run concurrently with each other.

The defendant moved, pursuant to CPL 330.30(1), to set aside the verdict, arguing, inter alia, that Rose's presence during J's testimony deprived him of a fair trial, and violated his right to confront and cross-examine witnesses against him. The defendant also argued, among other things, that Rose's presence in the courtroom was not authorized under the Executive Law, and that the court should have conducted a Frye hearing on the matter.

In an order dated July 27, 2011, the County Court denied the motion to set aside the verdict, holding that the defendant "had provided no authoritative proof that [the court's decision regarding Rose's presence] requires reversal as a matter of law as mandated by CPL § 330.30(1) [and that] it is particularly noteworthy that defendant cannot demonstrate actual prejudice." The court also noted that it had offered the defense an opportunity to submit proposed jury charges with regard to the dog's presence at trial, but that the defense declined to submit such proposed charges.

Appellate Arguments

On appeal, the defendant repeats many of the arguments that he made in support of his motion to set aside the verdict, and he also, inter alia, challenges the County Court's conclusion that CPL 60.42 (the so-called Rape Shield Law) barred him from presenting certain evidence in his defense. With respect to the comfort-dog issue, the defendant argues that Executive Law § 642-a does not specifically permit the presence of a comfort dog at a criminal trial; that the County Court's interpretation of the statute so as to permit such presence improperly invaded the domain of the Legislature; and that the dog's presence violated the defendant's due process right to a fair trial and impaired his right to confront witnesses against him. The defendant also contends, for the first time on appeal, that Executive Law § 642-a is unconstitutional; that the People committed prosecutorial misconduct because they were allegedly instrumental in providing the comfort dog for J's use; and that the court was required to make a finding of necessity before allowing such accommodation.


Executive Law § 642-a

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