People v. Tohom
109 A.D.3d 253, 969 NYS2d 123 (2013)
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Rule of Law:
A trial court has the discretion under New York Executive Law § 642-a and its inherent power to control courtroom proceedings to permit a testifying child victim to be accompanied by a therapeutic comfort dog to alleviate emotional stress. This accommodation does not inherently violate a defendant's right to a fair trial or confrontation, particularly when the court provides a limiting instruction to the jury.
Facts:
- Between the summer of 2006 and November 2010, the defendant was alleged to have engaged in multiple acts of sexual misconduct with his daughter, J, who was between the ages of 11 and 15 during this period.
- As a result of the alleged misconduct, J became pregnant on two separate occasions, and the defendant arranged for her to have an abortion both times.
- A psychiatrist diagnosed J with post-traumatic stress disorder resulting from the alleged sexual abuse.
- J expressed significant anxiety about testifying at trial and confronting the defendant.
- During therapy sessions with her social worker, a golden retriever therapy dog named Rose helped J feel more at ease, allowing her to become more verbal about her experiences.
Procedural Posture:
- The People (prosecution) filed a pretrial motion in Dutchess County Court (the trial court) seeking to allow a comfort dog, Rose, to accompany the victim, J, on the witness stand.
- The defendant opposed the motion, arguing the dog's presence would be prejudicial.
- The County Court held a hearing and granted the People's motion.
- At trial, the court provided a limiting instruction to the jury regarding the dog's presence before the victim testified and again before deliberations.
- A jury convicted the defendant of predatory sexual assault against a child and endangering the welfare of a child.
- The defendant filed a motion to set aside the verdict, which the County Court denied.
- The defendant appealed the judgment of conviction to this court, an intermediate appellate court.
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Issue:
Does a trial court's decision to permit a child victim testifying in a sexual assault case to be accompanied by a therapeutic comfort dog violate the defendant's due process right to a fair trial and his right of confrontation?
Opinions:
Majority - Sgroi, J.
No, allowing a therapeutic comfort dog to accompany a testifying child victim does not violate the defendant's due process or confrontation rights under these circumstances. New York Executive Law § 642-a directs judges to be sensitive to the psychological and emotional stress a child witness may undergo, and this statute's broad, 'catch-all' provision grants trial courts the flexibility to fashion appropriate accommodations, such as the use of a comfort animal. This authority is further supported by a trial court's inherent power to control its own proceedings. The presence of a dog is not inherently prejudicial, and in this case, the defendant failed to show actual prejudice, especially since the trial court gave a specific instruction for the jury not to draw any inference or sympathy from the dog's presence. Furthermore, the defendant's right of confrontation was not impeded, as the dog was unobtrusive, did not block the jury's view, and did not interfere with a full and thorough cross-examination.
Analysis:
This case establishes a significant precedent in New York by formally sanctioning the use of therapeutic comfort dogs in the courtroom for vulnerable witnesses. The court's broad interpretation of Executive Law § 642-a expands judicial discretion to include live animals as a permissible accommodation, extending beyond inanimate objects like teddy bears previously allowed. This decision provides trial courts with clear authority to balance a witness's well-being against a defendant's rights, potentially leading to increased use of comfort animals in sexual assault and child victim cases. The ruling emphasizes the importance of mitigating measures, like curative jury instructions, to ensure such accommodations do not result in unfair prejudice.
