APPEAL by the defendant from a judgment of the Supreme Court (Abraham Gerges, J.), rendered June 23, 2010, and entered in Kings County, convicting him of course of sexual conduct against a child in the first degree (two counts) and sexual abuse in the first degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (Allegra Glashausser of counsel), for appellant, and appellant pro se.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Keith Dolan, Catherine Dagoneses, and Melissa Causey of counsel), for respondent.
PETER B. SKELOS, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, SYLVIA HINDS-RADIX, JJ.
OPINION & ORDER
The defendant was convicted of two counts of course of sexual conduct against a child in the first degree involving one complainant, and one count of sexual abuse in the first degree involving a second complainant. The first complainant, who was 16 years old at the time of the trial, testified in open court as to events occurring more than eight years earlier. The second complainant (hereinafter the child), who was seven years old at the time of the trial, testified with the use of live, two-way closed circuit television pursuant to CPL article 65.
CPL article 65 permits the use of closed circuit television in the prosecution of certain sex crimes (see Penal Law article 130; Penal Law §§ 255.25, 255.26, 255.27) to elicit the testimony of child witnesses (see CPL 65.00) who are "declared to be vulnerable" (CPL 65.00). The primary issue on this appeal is whether the Supreme Court properly declared that the child was a vulnerable witness.
The child was born in 2002. The crime against her occurred in March 2008, when she was six years old. She was able to testify in open court about her ability to take an oath, and with regard to general background material about her family. She described the defendant as her "Uncle Ruben." The child's mother testified that the defendant was married to the mother's aunt, and the aunt and the defendant regularly cared for the child in their residence while the child's mother was at work.
Although the child was able to answer general background questions about her family in open court, when questioned about the incident, in the words of defense counsel, she became "overwhelmed to the point where she was just crying and could not... respond." The prosecutor made an oral application pursuant to CPL article 65 asking the court to declare that the child was a vulnerable witness, and noted that the People were "prepared to go forward with a hearing... with a social worker who could testify about the trauma... that would result from forcing the victim to testify in a public courtroom in front of the defendant." Over defense counsel's objection, the Supreme Court directed a hearing on the issue of whether the child was a vulnerable witness within the meaning of CPL article 65. The Supreme Court found that such a hearing was warranted because the child appeared terrified on the witness stand, was crying constantly, and could not speak. The Supreme Court commented that "there are certain instances when a picture is worth a thousand words, " noting that it "had the ability to visually watch this child and saw the trauma that she was going through."
At the ensuing hearing, a social worker who had met with the child on at least five prior occasions testified that the child could describe the sexual abuse to her without becoming visibly upset, but became "very emotionally distraught" in open court when she tried to describe the abuse in the presence of the defendant. She also noted that it took the child "a very long time to calm... down after she had left the courtroom." The social worker had never seen the child behave in that manner before. The child told the social worker that she was afraid to talk about the incident with the defendant in the room. The social worker stated that it was her "professional assessment" that the child would suffer "severe mental or emotional harm by testifying in open court." Although the social worker testified as to her professional qualifications, the Supreme Court did not declare her to be an expert witness.
The Supreme Court ruled, on the record, that the child was a vulnerable witness, on the grounds that:
"From the Court's vantage point on the bench approximately three feet from where the witness was seated, it was clear that the child was in severe emotional distress and appeared terrified. Based on the Court's own observations and the testimony of the social worker, it is apparent that being in court is exceptionally traumatic for this young child and that she is suffering from severe mental or emotional harm and is unable to testify. While the Court is mindful of the defendant's constitutional rights, the CPL does authorize this testimony. The Court will permit a two-way video feed... and we're making sure that the jury will be able to see her testifying and that she will be able to see the complete courtroom."
During the child's testimony, the defendant remained in the courtroom. The prosecutor and defense counsel were in the room with the child, and provisions were made for defense counsel and the defendant to communicate with each other during the testimony.
On appeal, the defendant contends that allowing the child to testify via closed-circuit television outside his physical presence violated his Federal and State constitutional right to confront the witnesses against him because there was no clear and convincing evidence before the court that the child was a vulnerable witness within the meaning of CPL article 65. In support of his position, the defendant emphasizes that the court declared the child to be a vulnerable witness based only on its own observations and the lay opinion of the social worker. The People respond that the court properly declared the child to be a vulnerable witness, pointing out that the testimony of an expert witness is not required to support a finding of ...