author: Read, J. Jones, J. (dissenting).

text:
    [970 NE2d 380, 947 NYS2d 357]
    The People of the State of New York, Respondent, v Khemwattie Bedessie, Appellant.
    Argued February 9, 2012;
    decided March 29, 2012

      POINTS OF COUNSEL

      Law Office of Ronald L. Kuby, New York City (Ronald L. Kuby and Lea Spiess of counsel), for appellant.
    I. The trial court erroneously admitted the medical records of Dr. Rosenfeld, containing the double hearsay statement allegedly made by the victim to his mother that someone “put his peepee in her wee-wee.” Without that inadmissible statement, the evidence was legally insufficient to support defendant’s conviction of rape. (People v Ballerstein, 52 AD3d 1192; Rivera v City of New York, 293 AD2d 383; People v Lipsky, 57 NY2d 560; People v Reade, 13 NY2d 42; People v Lytton, 257 NY 310; People v Taleisnik, 225 NY 489; People v Deacons, 109 NY 374; People v Roach, 215 NY 592; People v Murray, 40 NY2d 327; People v Dunbar, 205 Misc 630.) II. The trial court’s exclusion of expert testimony on false confessions was an abuse of discretion. (United States v Hall, 93 F3d 1337; People v Kogut, 10 Misc 3d 305; People v Taylor, 75 NY2d 277; Smith v United States, 348 US 147; Singletary v Fischer, 365 F Supp 2d 328; People v Wiggins, 16 Misc 3d 1136[A], 2007 NY Slip Op 51715[U]; People v Green, 250 AD2d 143; People v Philips, 180 Misc 2d 934; People v Days, 31 AD3d 574, 7 NY3d 811; People v LeGrand, 8 NY3d 449.) III. Defendant was denied her right to effective assistance of counsel under the constitutions of the State of New York and the United States of America. (People v Lombardi, 139 AD2d 767, 72 NY2d 920; People v Henry, 95 NY2d 563; People v Baldi, 54 NY2d 137; Strickland v Washington, 466 US 668; Gersten v Senkowski, 299 F Supp 2d 84, 426 F3d 588, 547 US 1191; Eze v Senkowski, 321 F3d 110; People v Clarke, 66 AD3d 694; People v De Jesus, 42 NY2d 519.)

      Richard A. Brown, District Attorney, Kew Gardens (Laura T. Ross and John M. Castellano of counsel), for respondent.
    I. The victim’s statements contained in the medical records were properly admitted and any error was harmless. (People v Liccione, 50 NY2d 850; People v Kello, 96 NY2d 740; People v Graves, 85 NY2d 1024; People v Kennedy, 68 NY2d 569; People v Ortega, 15 NY3d 610; Williams v Alexander, 309 NY 283; Johnson v Lutz, 253 NY 124; Matter of Leon RR, 48 NY2d 117; People v Taylor, 80 NY2d 1; Cover v Cohen, 61 NY2d 261.) II. The trial court properly exercised discretion in denying defendant’s request to introduce expert testimony regarding false confessions, and any error in the ruling was harmless. (People v LeGrand, 8 NY3d 449; People v Hill, 85 NY2d 256; People v Taylor, 75 NY2d 277; People v Cronin, 60 NY2d 430; People v Keindl, 68 NY2d 410; People v Shepard, 259 AD2d 775; People v Young, 7 NY3d 40; People v Ciaccio, 47 NY2d 431; People v Williams, 6 NY2d 18; People v Wiggins, 16 Misc 3d 1136[A], 2007 NY Slip Op 51715[U].) III. Defendant was afforded meaningful representation both before and during trial. (People v Benevento, 91 NY2d 708; People v Baldi, 54 NY2d 137; People v Baker, 14 NY3d 266; People v Satterfield, 66 NY2d 796; People v Borrell, 12 NY3d 365; People v Turner, 5 NY3d 476; People v Henry, 95 NY2d 563; People v Flores, 84 NY2d 184; Strickland v Washington, 466 US 668; People v Ryan, 90 NY2d 822.)
   OPINION OF THE COURT

Read, J.

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.

L

Defendant Khemwattie Bedessie, 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 “[n]o 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 9 to 10 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 hare-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 herselfi,] 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 “starfied] 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 “needfed] an expert on this vital issue” of false confessions in order to “mount a meaningful defense.” His application included Dr. Of-she’s curriculum vitae and a report dated May 18, 2007. The report indicated that Dr. Ofshe 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 conclusions 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 . . . torture tactic or some kind of crazy tactic.” The judge granted defense counsel’s for-cause challenge to this prospective juror.

The People called as witnesses the boy, his mother, the nurse who examined the boy at the emergency room and the doctor who examined him at the Queens Child Advocacy Center. This physician, a pediatrician and the Center’s director, testified, among other things, that a four-year-old male could achieve an erection. Detective Bourbon took the stand, testifying as described earlier, and the jury was shown defendant’s videotaped statement.

During the detective’s testimony, defense counsel again brought up the subject of an expert on false confessions. Supreme Court reiterated that a Frye hearing was not necessary because even if such evidence was scientifically valid, it might not be relevant in a particular case. He added that such expert testimony was not

“appropriate in this particular case and the Courts have held, in my opinion, in my research, that such testimony usurps comments to the jury.
“You do it in a case where there is little or no corroboration. In this particular case, this Court deemed, based upon the representation of the district attorney as to what the [child] was going to testify to, that there was ample corroboration, if believed, to support . . . the confession.”

Defendant presented two character witnesses. She also called the sister of the day care facility’s owner. This witness, a certified preschool teacher who helped her sister out three or four days a week in early 2006, described the facility’s physical layout and the procedures followed, including that employees were instructed never to enter the children’s bathroom and close the door, or take children into the staff bathroom; that the children used the cots only during their nap time from 12:30 to 2:30; and that noise coming from the bathrooms could be heard in the classroom. Dr. David Mantell, a forensic psychologist, testified about the proper technique for interviewing young children when investigating sexual abuse allegations. He opined that the mother’s practice of randomly and frequently asking her son whether anyone had touched him inappropriately had a “suggestive quality” to it and alerted the child to a particular area of parental concern; and that young children, who are especially susceptible to suggestion, have difficulty keeping track of whether they know something because it actually happened, or because someone important in their lives told them about it.

Defendant testified on her own behalf. She denied having sexual intercourse with the boy, denied that she placed his hand on her breast and denied that she touched his penis. Defendant said she accompanied Detective Bourbon to what he called his office at the behest of the day care facility’s owner, leaving at about 9:00 a.m. Upon arrival at their destination, the detective took her to a small room, placed a tape recorder on the table in the room and asked defendant if she knew why she was there. When she responded that she did not, he accused her of raping the boy, whose name he had written on a piece of paper that he showed to her. Defendant testified that she asserted “[Y]ou can’t accuse me like that.” She also said that the detective claimed that he had a recording of her voice on the tape recorder “sexing” with the boy. Defendant challenged the detective “to play it and let [her] hear because [she] never done nothin’ to no kids.”

Detective Bourbon did not play the tape, but instead next confronted defendant with two options: to tell the truth and go home, or to go to Hikers Island jail, where she would be beaten. Defendant testified that she then “started to get scared” because she had never before experienced a “police problem.” At that point, she acquiesced, telling the detective she would “do anything” for him if he would let her go home to her sickly mother.

According to defendant, Detective Bourbon then began quizzing her about what she wore and how she sat when reading books to the children; he said “promise me that this is going to [be] between me and you; accept everything that I will tell you and you [are] going to go home because your brother is outside.” She later learned her brother was not outside, but she had no way of knowing it at the time because she could not “see anybody because [she] was in the room.” Defendant assured the detective that she would do anything he wanted as long as he sent her home. When he then wrote something on a piece of paper and directed her to sign it, she did so without reading what she was signing.

Defendant denied that anything she said during her videotaped confession was true, asserting that she “said all those things on tape” only because Detective Bourbon gave his word that he would let her go home to her mother if she did; and that she sincerely believed that if she admitted to the acts described in the videotape, the detective would let her leave because that was what he promised. Defendant claimed that she did not know the meaning of some of the words that Detective Bourbon coached her to say—including orgasm and climax—and that he told her to put her hands between her legs, to describe how a woman feels after sex and to describe the difference between how she felt having sex with an adult as opposed to a child. Defendant said that Detective Bourbon did not put her in handcuffs or restrain her before she made the statement. Nor did he threaten or hit her.

The jury convicted defendant on all counts. On July 31, 2007, Supreme Court sentenced her to determinate prison terms of 20 years plus five years of postrelease supervision on the first-degree rape conviction, to run concurrently with determinate prison terms of five years plus three years of post-release supervision on the sexual abuse convictions, and a definite term of one year on the child endangerment conviction. Defendant appealed.

In a decision dated November 16, 2010, the Appellate Division unanimously affirmed (78 AD3d 960 [2d Dept 2010]). The court rejected all of defendant’s claims of error, concluding, in particular, that “in the context of this case, the Supreme Court providently exercised its discretion in precluding expert testimony on false confessions generally, and as to the defendant’s particular susceptibility to make a false confession under police interrogation” (id. at 960). A Judge of this Court granted defendant leave to appeal (16 NY3d 828 [2011]), and we now affirm.

IL

That the phenomenon of false confessions is genuine has moved from the realm of startling hypothesis into that of common knowledge, if not conventional wisdom. After all, here there were two panels of prospective jurors, and during voir dire only one individual out of 28 questioned the proposition that an innocent person might confess to a crime he did not commit, even in the absence of physical coercion. This does not put off limits in every case, however, expert evidence on those factors that the scientific community has determined may contribute to a false confession.

Our decision in People v Lee (96 NY2d 157 [2001]) is instructive. Although Lee addressed expert evidence on the reliability of eyewitness identification, we there laid out broad principles governing the admissibility of expert psychological testimony; namely, “the admissibility and limits of expert testimony lie primarily in the sound discretion of the trial court,” which should be guided by “whether the proffered expert testimony would aid a lay jury in reaching a verdict”; “courts should be wary not to exclude such testimony merely because, to some degree, it invades the jury’s province”; “[d]espite the fact that jurors may be familiar from their own experience with factors relevant to the reliability” of the evidence at issue, “it cannot be said that psychological studies” bearing on reliability “are within the ken of the typical juror”; and since the expert testimony “may involve novel scientific theories and techniques, a trial court may need to determine whether the proffered expert testimony is generally accepted by the relevant scientific community” (id. at 162 [internal quotation marks and citation omitted]).

The judge in this case declined to hold a Frye hearing. He reasoned that this was unnecessary because Dr. Ofshe’s expert testimony was not relevant and likely to assist the jurors in any way. He noted in particular that the jurors, based on their own life experiences, were competent to assess the reliability of defendant’s confession, and, indeed, the expert’s testimony threatened to usurp the jury’s function. Second, he concluded that the child’s testimony was likely to (and, in fact, did) corroborate defendant’s confession.

Of course, as we pointed out in Lee, an expert’s testimony, by its very nature, always to “some degree . . . invades the jury’s province” (id.), and so this circumstance alone is not an adequate basis for rejecting expert testimony. As for corroboration of defendant’s confession, the child’s testimony substantiated both commission of the offenses charged, as is necessary whenever a defendant confesses (see CPL 60.50), and defendant’s identity as his abuser. Defendant argued that this evidence was tainted by the suggestive, even though unintentional and well-meaning, influence of the mother, reinforced by the nurse and others who questioned the boy, who was of an age where suggestibility is a recognized risk. And certainly this is not a case where there was corroboration by verifiable evidence supplied in a defendant’s confession itself and previously unknown to the police. Defendant furnished most of the details of the crimes with which she was charged, but there was no way to validate her narration—recanted at trial—although it was consistent with the nature and timing of the boy’s allegation of sexual abuse. Whether or not his allegation alone was sufficient reason for the judge to deny defendant’s application, Dr. Ofshe’s proffer had nothing to say that was relevant to the circumstances of this case. The judge therefore did not abuse his discretion when he determined that Dr. Ofshe’s testimony would not assist the jury in evaluating the voluntariness and truthfulness of defendant’s confession or reaching a verdict.

Dr. Ofshe’s report was slightly over seven pages long. He represented at the outset that his proposed testimony would “involve three elements: presentation of information on the topic of police interrogation and tactics that can result in unreliable statements, information on the phenomenon of false confession and an analysis of Ms. Bedessie’s interrogation.” But the body of his report was filled with discussion of extraneous matters, speculation and conclusions based on facts unsupported even by defendant’s version of her interrogation. For example, Dr. Ofshe discussed at some length the “rash of day-care sexual abuse cases based on false accusations elicited from pre-school children,” the suggestibility of very young children and the caution that must be exercised when “de-briefing” them. As noted earlier, defendant’s theory of the case was that the mother unwittingly created an illusion of sexual abuse in her son’s memory, which medical and law enforcement personnel bolstered by sloppy questioning. In other words, nothing improper happened to the boy, although he and his cadre of supporters may have sincerely thought otherwise. But this has nothing to do with any factors or circumstances correlated by psychologists with false confessions. In any event, defendant could—and did— fully explore her theory through cross-examination and the direct testimony of another expert, Dr. Mantell.

Dr. Ofshe also criticized at length Detective Bourbon’s failure to videotape his interview with defendant and any discussions that took place between her oral and videotaped confessions, a period of slightly more than one hour in Detective Bourbon’s telling; slightly more than two hours in defendant’s. While electronic recording of interrogations should facilitate the discovery of false confessions and is becoming standard police practice, the neglect to record is not a factor or circumstance that might induce a false confession. Dr. Ofshe talked in his report about videotaping as a means to identify what is called “contamination”—inadvertent or deliberate police disclosure of nonpublic crime facts to the suspect during interrogation, which then seep into the suspect’s confession and so make it seem more credible (see Warney v State of New York, 16 NY3d 428 [2011]). To this point, he asks “Were [the particular facts that came into the videotaped statement] volunteered by the suspect or deliberately or inadvertently revealed by the interrogator?” But contamination was never relevant in this case. All that Detective Bourbon knew at the time of the interview was that the boy had made an allegation that defendant sexually abused him by genital sexual contact.

Dr. Ofshe suggested that Detective Bourbon may have neglected to record the interrogation so that he could surreptitiously overbear defendant’s will and then school her as to what to say in her videotaped confession; specifically, the detective’s

“failure to record . . . deprives anyone seeking to evaluate the truthfulness of [defendant’s] confession of the evidence that would allow for this determination based on fact rather th[a]n prejudice. It would have been possible to evaluate whether she introduced the wealth of apparently corroborative information contained in the recorded statement, whether those parts of the recorded statement she introduced (if she is the source of any of it) were likely to be nothing more than inventions, and how much, if any, of the factual description of the sexual assaults contained in the confession was first provided by [Detective Bourbon] and then merely parroted by [defendant].”

This is argument and speculation, not a topic on which expert evidence might aid the jury in determining the reliability of defendant’s confession.

Research in the area of false confessions purports to show that certain types of defendants are more likely to be coerced into giving a false confession—e.g., individuals who are highly compliant or intellectually impaired or suffer from a diagnosable psychiatric disorder, or who are for some other reason psychologically or mentally fragile (see Chojnacki, Cicchini and White, An Empirical Basis for the Admission of Expert Testimony on False Confessions, 40 Ariz St LJ 1, 15-17 [2008] [discussing “dispositional factors” associated with false confessions]). Dr. Ofshe did not proffer testimony that defendant exhibited any of the personality traits that research studies have linked to false confessions. And in fact, defendant, although not well-educated, appeared at trial to be an adult of normal intelligence. She displayed no sign of any of the mental factors associated by psychiatrists or psychologists with individuals more likely to confess to crimes they did not commit.

Research also purports to identify certain conditions or characteristics of an interrogation which might induce someone to confess falsely to a crime (id. at 17-18 [discussing “situational factors” associated with false confessions]). Dr. Ofshe offered to “apply the published analysis of interrogation to the specifics” of defendant’s “deeply troubling” account of what happened to her. But his descriptions of the allegations on which he purported to base his expert opinion were general or vague and not, in fact, linked to any published analysis. First, he stated that defendant “reported] being tricked into accompanying Detective [Bourbon] into his car and then being transported to a police facility.” But he never explained how she claimed to have been “tricked.” Defendant did not claim deception when she later testified at trial. As noted earlier, there she said that she left the day care center with Detective Bourbon at her employer’s direction.

Dr. Ofshe also stated that defendant told him that Detective Bourbon “very strongly” accused her of sexually abusing the child in an aggressive and threatening manner, demeaned her by using vulgar language and was “punishing” in other unspecified ways. Dr. Ofshe did not say what these generalizations about Detective Bourbon’s alleged behavior have to do with false confessions, based on published analyses of interrogations. And in her trial testimony, defendant did not portray Detective Bourbon as acting aggressively toward her during the interview. She claimed only that when he used the word “rape,” she immediately denied the accusation; and when he told her that he had a tape recording of her sexual encounter with the boy, she called his bluff by inviting him to play it for her, and he backed down.

As a final example, Dr. Ofshe commented that

“[i]n an interrogation such as [defendant’s] in which the investigator relies on evidence ploys (claims that overwhelming evidence links the suspect to the crime) to base his a[s]sertion that the suspect’s position is hopeless and therefore the suspect will be arrested, tried and convicted, introducing the treatment alternative strategy is likely to be very influential.”

He defines the “treatment alternative strategy” as offering a suspect a choice “between two alternatives . . . clearly linked to very different results.” In this case, he stated that Detective Bourbon “promised” defendant that “confession would result in nothing more than . . . being required to undergo counseling which . . . would happen in the building where she was being interrogated,” but that if she “continued to deny guilt she would be sent to Rikers Island where she would be brutalized by the other inmates because she was a child abuser.”

In the first place, Dr. Ofshe does not say that defendant ever informed him that Detective Bourbon made claims that there was “overwhelming evidence [linking her] to the crime”; he did not identify any published studies to support the proposition that the “treatment alternative strategy” is generally accepted within the relevant scientific community as a situational factor associated with false confessions. And again, at trial defendant did not testify that she was offered treatment. She claimed that Detective Bourbon assured her there would be no repercussions if she confessed.

False confessions that precipitate a wrongful conviction manifestly harm the defendant, the crime victim, society and the criminal justice system. And there is no doubt that experts in such disciplines as psychiatry and psychology or the social sciences may offer valuable testimony to educate a jury about those factors of personality and situation that the relevant scientific community considers to be associated with false confessions. While the expert may not testify as to whether a particular defendant’s confession was or was not reliable, the expert’s proffer must be relevant to the defendant and interrogation before the court. Dr. Ofshe’s proffer does not meet this standard, and therefore the trial judge did not abuse his discretion when he excluded the proposed testimony, even assuming that the confession was not corroborated.

We have considered defendant’s other arguments and find them to be without merit. Accordingly, the order of the Appellate Division should be affirmed.

Jones, J. (dissenting).

Mere acceptance that false confessions exist does not aid a jury in assessing the reliability of a thinly corroborated, recanted confession. Where, as here, there is little to no corroborating evidence connecting defendant to the commission of the crimes charged, a jury will benefit from the testimony of an expert explaining factors relevant to the reliability of a confession. Because I conclude, consistent with People v LeGrand (8 NY3d 449 [2007]), that the court abused its discretion by excluding defendant’s expert testimony, I respectfully dissent.

New York does not allow a defendant to “be convicted of any offense solely upon evidence of a confession” (CPL 60.50). Section 60.50 requires “additional proof that the offense charged has been committed.” Similarly, a “defendant may not be convicted of an offense solely upon unsworn evidence” given by a young child (CPL 60.20 [3]). Here, the evidence that led to defendant’s conviction consists of her confession and the unsworn statements, both in court and out of court, of a young child. In these circumstances, a Frye hearing to consider the admissibility of expert testimony on the reliability of the confession, at the very least, should have been conducted. Moreover, it would be error to exclude such testimony, assuming it satisfied the relevant prongs enunciated in LeGrand (a case where, upon reviewing the Frye hearing, this Court concluded that the expert established at the hearing that his conclusions were generally accepted, and thus the testimony was error to exclude). Undoubtedly, relevant testimony of an expert on the reliability of confessions according to scientifically accepted principles, as well as Criminal Procedure Law §§ 60.20 and 60.50, seeks to prevent a taint of the criminal justice system—wrongful convictions.

In LeGrand,

“we h[e]ld that where the case turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it is an abuse of discretion for a trial court to exclude expert testimony on the reliability of eyewitness identifications if that testimony is (1) relevant to the witness’s identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror” (id. at 452).

A similar rule should be extended to the phenomenon of false confessions. Where, aside from the confession, there is little or no evidence connecting the defendant to the charged crime, to exclude expert testimony on the reliability of the defendant’s disavowed confession would be an abuse of a trial court’s discretion “if that testimony is . . . ([!]) based on principles that are generally accepted within the relevant scientific community, ([2]) proffered by a qualified expert and ([3]) on a topic beyond the ken of the average juror” (id.).

The majority observes that the trial judge concluded that a Frye hearing was unnecessary because the “expert testimony was not relevant and likely to assist the jurors” (majority op at 157). More specifically, the court noted that (1) “the jurors, based on their own life experiences, were competent to assess the reliability of defendant’s confession, and, indeed, the expert’s testimony threatened to usurp the jury’s function [and (2)] . . . that the child’s testimony was likely to . . . corroborate defendant’s confession” (id. at 157). Although the majority does not accept all of the judge’s observations, it nonetheless concludes, that such determination was not an abuse of discretion. I maintain, however, without a Frye hearing on the issue of whether the proposed testimony contained information generally accepted by the scientific community, such conclusion is not possible.

The majority questions the sufficiency of the proffer, curiously concluding that it was not “relevant to the defendant and interrogation before the court” (majority op at 161). Here, the proffer was made by a highly qualified individual as demonstrated by his curriculum vitae, who had previously testified in numerous cases where defendants raised the reliability of a confession as an issue. The proffer involved research concerning incidents that lead to false confessions and the tactics in this case that may have compromised the reliability of the confession. Additionally, Dr. Ofshe specifically applied his research to defendant’s interrogation and “formal” videotaped confession. Such a proffer, which was indeed relevant to this specific case, is sufficient to warrant a Frye hearing on whether such information is generally accepted.

Moreover, in light of Warney v State of New York (16 NY3d 428 [2011] [claimant was incarcerated for a murder he did not commit based upon his false confession]), expert testimony in this area warrants close consideration. It may be that this issue is not only beyond the ken of an average juror but also beyond the ken of many jurists, as it was in the area of the accuracy of eyewitness identifications. Understandably, the concept that a person would voluntarily admit to a crime he or she did not commit is counterintuitive. As we have previously observed in LeGrand, a trial court is “obliged to exercise its discretion with regard to the relevance and scope of [the] expert testimony,” despite the conclusion that an expert should have been admitted in that case (8 NY3d at 459). Thus, not only would have it been proper to conduct a Frye hearing, but also proper to admit such testimony and limit it to information that is accepted by the scientific community and is relevant to this particular case.

In sum, it is necessary to extend LeGrand to the area of false confessions. Given the unreliability of the corroborating evidence—unsworn testimony and hearsay—it was an abuse of the court’s discretion to exclude expert testimony on the reliability of defendant’s recanted confession if the proffered testimony is indeed supported by the scientific community. Certainly, it was an abuse of discretion to deny a Frye hearing given that the proffer appeared to sufficiently highlight the issues relevant to the reliability of a confession and the factors that may have undermined the reliability of defendant’s confession in this case. Accordingly, I would reverse the Appellate Division order and order a new trial.

Judges Ciparick, Graffeo, Smith and Pigott concur with Judge Read; Judge Jones dissents and votes to reverse in a separate opinion in which Chief Judge Lippman concurs.

Order affirmed.

      . Concerning the charges of sexual abuse and rape, the child testified that defendant “squeezed [his] penis.” When asked what did defendant do to him after defendant took her pants off, the child responded, “She just squeezed my pee-pee.” The child’s mother testified that he told her that defendant “went up and down, up and down on his pee-pee.” Lastly, the medical evaluation written by the Child Advocacy Center indicated that the child told his mother that defendant had sexually abused him and “reported that [defendant] put his ‘peepee in her weewee.’ ”

      . Dr. Ofshe described “the pre-admission phase of the interrogation (that part of an interrogation in which a suspect is influenced to shift from denial to admission)” and “the post-admission phase (during which the confession statement is developed and memorialized)” and explained that a contemporaneous electronic recording would have allowed one to assess, in this case, “whether [defendant] complied with [the detective]’s demand for a confession due to psychological coercion or whether she voluntarily gave a confession presumably because she felt guilt about a crime she had committed.” He also explained that such a recording is necessary in the instant case for the following reasons: (1) “Physical evidence or lack thereof’; (2) “The suggestibility of very young children” and (3) “The de-briefing of very young children” (by a parent, rather than a professional in the area of child sexual abuse cases). While Dr. Ofshe’s report explained how to ensure the reliability of defendant’s confessions, he further explained how specific tactics employed could have led to psychological coercion and, thus, the unreliability of the videotaped confession. Specifically, Dr. Ofshe stated:
      “The tactic that [defendant] described] [detective] using is the psychologically coercive motivational strategy I most frequently find in use in improperly conducted sex[u]al abuse interrogations. I am familiar with this tactic because it has been repeatedly described to me by persons whose interrogations were not recorded and because I have observed it in use in fully recorded interrogations done by investigators who did not recognize how blatantly coercive it was and allowed themselves to be recorded. I’ve found this tactic in use in so many coercive sexual abuse interrogations that I’ve labeled it as ‘the treatment alternative strategy.’ ”

        (n. cont’d)

        Dr. Ofshe then detailed the coercive tactics in this case and how they affect
      the reliability of a confession.


source: Caselaw Access Project

author: Pigott, J. Ciparick, J. (dissenting).

license: Public Domain

text:
    [970 NE2d 816, 947 NYS2d 781]
    The People of the State of New York, Respondent, v Rafael Rodriguez, Appellant.
    Argued March 20, 2012;
    decided April 26, 2012

      POINTS OF COUNSEL

      Center for Appellate Litigation, New York City (Susan H. Salomon and Robert S. Dean of counsel), for appellant.
    I. Where appellant moved to suppress the intercepted calls allegedly between him and the cooperating accomplice, premised on the prosecution’s failure to provide posttermination notice of the interceptions mandated by CPL 700.50 (3), the Appellate Division erred in imposing a prejudice pleading-requirement and thereby affirming the summary denial of the motion. (People v Velasquez, 1 NY3d 44; People v Bonilla, 82 NY2d 825; People v LaFontaine, 92 NY2d 470; People v Tartt, 71 Misc 2d 955; People v Hueston, 42 AD2d 860; People v Bialostok, 80 NY2d 738; People v Darling, 95 NY2d 530; People v Schulz, 67 NY2d 144; People v Capolongo, 85 NY2d 151; People v Basilicato, 64 NY2d 103.) II. Contrary to the Appellate Division’s determination, the trial court, without legitimate basis, interfered, with and disparaged counsel’s cross-examination of the prosecution’s key witness— the accomplice-cooperator—and thereby, as counsel argued, signaled the court’s belief in the witness’s credibility, all of which warranted a mistrial. (People v Yut Wai Tom, 53 NY2d 44; People v De Jesus, 42 NY2d 519; People v Arnold, 98 NY2d 63; People v Grant, 185 AD2d 896; People v Mees, 47 NY2d 997.) III. Counsel rendered ineffective assistance concerning the drug-sale sentence, where he failed to argue the unconstitutionality of the 17-year determinate prison term. (Janvier v United States, 793 F2d 449; People v Benevento, 91 NY2d 708; People v Baldi, 54 NY2d 137; Strickland v Washington, 466 US 668; People v Turner, 5 NY3d 476; People v Baker, 14 NY3d 266; People v Pena, 50 NY2d 400; People v Jones, 39 NY2d 694; United States v Wiley, 278 F2d 500; People v Slobodan, 67 AD2d 630.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Alice Wiseman and Susan Axelrod of counsel), for respondent.
    I. Defendant is not entitled to suppression of his intercepted conversations. (People v Nix, 78 AD3d 1698; People v Bigelow, 68 AD3d 1127; People v Rivera, 257 AD2d 425; People v Basora, 75 NY2d 992; People v Burke, 72 NY2d 833; People v Kinchen, 60 NY2d 772; People v LaFontaine, 92 NY2d 470; People v Patterson, 78 NY2d 711; United States v Donovan, 429 US 413; Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539.) II. The trial judge did not improperly interfere with defendant’s cross-examination of George Cabrera. (People v Yut Wai Tom, 53 NY2d 44; People v Charleston, 56 NY2d 886; People v Moulton, 43 NY2d 944; People v De Jesus, 42 NY2d 519; People v Jamison, 47 NY2d 882; People v Garrett, 231 AD2d 428; People v Johnson, 219 AD2d 509; People v Gonzalez, 38 NY2d 208; People v Arnold, 98 NY2d 63; People v Davis, 58 NY2d 1102.) III. Defendant’s attorney was not constitutionally ineffective at sentencing. (People v Thompson, 60 NY2d 513; People v Rivera, 71 NY2d 705; People v Love, 57 NY2d 998; People v Jones, 55 NY2d 771; Mickens v Taylor, 535 US 162; Strickland v Washington, 466 US 668; People v Turner, 5 NY3d 476; People v Caban, 5 NY3d 143; People v Benevento, 91 NY2d 708; People v Hobot, 84 NY2d 1021.) IV Defendant’s pro se supplemental claims are meritless.
   OPINION OF THE COURT

Pigott, J.

The New York Drug Enforcement Task Force obtained an eavesdropping warrant on July 21, 2005, in order to intercept the cell phone calls of George Cabrera, a Queens drug dealer. Another target of the warrant was a person later identified as defendant Rafael Rodriguez, also known as “Rafi.” Agents recorded a number of Cabrera’s conversations, including several that occurred on August 1, 2005 during which Cabrera spoke with defendant and with Willie “Buddha” Smith.

In the first call, using coded language, which Cabrera interpreted at defendant’s trial, Smith confirmed with Cabrera that he wanted to buy 150 grams of cocaine. The two men had agreed on a price for this transaction the previous day. When Smith asked how long it would take Cabrera to get the cocaine, he replied that he would need to ask “Rafi.” As Cabrera explained at trial, he was referring to defendant, who had agreed to obtain the drugs in Manhattan, in exchange for a share in the profits. Minutes later, Cabrera phoned defendant, expecting him to be in Manhattan. Defendant was still in Queens, but assured Cabrera he had time to do the job. Cabrera told defendant to go to Manhattan immediately, and then called Smith to ask for an extension of a few hours.

In a call later that afternoon, Cabrera told defendant that he was going to meet Smith at 6:00 p.m. Defendant said he would join Cabrera. Cabrera confirmed arrangements with Smith, and picked defendant up at a street corner in Manhattan. Defendant told Cabrera that he was going to get the cocaine from a dealer nearby and had Cabrera drive to an intersection two blocks away. There Cabrera stepped out of the car. While Cabrera was talking with an acquaintance, he noticed a man walk by his vehicle and, upon returning, was told by defendant that the cocaine was now in his car.

Defendant and Cabrera drove to Queens. At about 6:40 p.m., Smith walked to a preassigned meeting place just as defendant and Cabrera arrived. Smith got into the back seat of Cabrera’s vehicle. Smith, meanwhile, was the target of an investigation unrelated to the Drug Enforcement Task Force’s, and a New York City Police Department (NYPD) detective, Constantine Papadopoulos, was sitting in an unmarked car conducting surveillance. Papadopoulos observed Smith talking with defendant and Cabrera, saw money in Smith’s hands, and noticed Cabrera lean forward to get a black plastic bag from defendant. At this point, Detective Papadopoulos and his partner arrested the three men. Papadopoulos found a black plastic bag where defendant had been sitting. Cabrera had $750 on his person. Smith had $155, and $4,000 was found where he had been sitting in the vehicle. The plastic bag contained more than five ounces of cocaine.

After the Drug Enforcement Task Force learned that Cabrera had been arrested by the NYPD, it “rearrested” Cabrera, along with defendant and Smith. Cabrera was charged in federal court in relation to an unrelated 2004 heroin deal. Cabrera pleaded guilty in the federal case; the mandatory minimum for the offense was 120 months’ imprisonment.

Defendant first learned that he had been a subject of an eavesdropping warrant at his arraignment on December 15, 2005. A week later, he was charged by indictment with criminal sale of a controlled substance in the first degree (Penal Law § 220.43 [1]) and conspiracy in the second degree (Penal Law § 105.15). Cabrera was charged with the same crimes. (Smith, meanwhile, pleaded guilty to criminal possession of a controlled substance in the second degree, and was sentenced to 3V2 years’ imprisonment.)

In an omnibus motion filed in April 2006, defendant moved to suppress the intercepted phone calls on the ground that the prosecution had failed to give him notice of the warrant as required by CPL 700.50 (3). Although a written decision by Supreme Court on this issue is not extant, it appears clear from a later Mapp/Dunaway ruling that the court considered, but denied, defendant’s request for suppression of the phone calls, without holding a hearing on the issue. In any case, no suppression motion was granted.

In October 2007, Cabrera entered into a cooperation agreement with the Office of the Special Narcotics Prosecutor. With respect to his August 1 arrest, Cabrera pleaded guilty to criminal sale of a controlled substance in the third degree. The prosecutor agreed to a reduced sentence of one year’s imprisonment, to be served concurrently with Cabrera’s federal sentence, if Cabrera testified truthfully at defendant’s trial.

Shortly thereafter, defendant proceeded to a jury trial. Cabrera testified at length, against defendant. Six of eight intercepted calls were played for the jury, and transcripts of all the conversations were introduced into evidence. Detective Papadopoulos testified as well.

For his part, defendant placed Cabrera’s cooperation agreement into evidence, and cross-examined Cabrera on it. Defendant did not testify or introduce witnesses. In summation, defense counsel argued that this was a case of mistaken identity—defendant and “Rail” were not the same person—and urged the jury not to credit Cabrera’s testimony.

The jury found defendant guilty as charged. At sentencing, the prosecutor argued that only a trusted member of a narcotics organization could have obtained such a large amount of cocaine and recommended a 15-year prison sentence on the sale count. Defense counsel sought an eight-year term for that count, noting that defendant’s criminal record was far less extensive than Cabrera’s and that defendant had been offered five years’ imprisonment in exchange for a guilty plea. Supreme Court sentenced defendant to concurrent terms of 17 years’ imprisonment on the sale count and 5 to 15 years’ imprisonment on the conspiracy count. Subsequently, Supreme Court imposed five years’ postrelease supervision on defendant, doing so in his absence.

On appeal, defendant made several arguments, including the contentions that he should have been granted a suppression hearing in regard to the eavesdropping warrant issue, that his postrelease supervision term had been illegally imposed in his absence, and that his prison sentence was harsh and excessive. The Appellate Division rejected all defendant’s claims, except the challenge to his postrelease supervision sentence, which the People conceded (77 AD3d 420 [2010]). That court held that suppression of wiretap evidence based on the prosecution’s violation of CPL 700.50 (3) was not warranted without a showing of prejudice, and found that defendant failed to allege any prejudice and had a full opportunity to challenge the legality of the warrant when he received notice of it at his arraignment (77 AD3d at 421). The court modified and, as modified, affirmed Supreme Court’s judgment, remitting the matter for the sole purpose of the imposition of a postrelease supervision term in defendant’s presence.

A Judge of this Court granted defendant leave to appeal (15 NY3d 955 [2010]). We now affirm.

Pursuant to CPL 700.50 (3), written notice must be served upon a person who is named in an eavesdropping or video surveillance warrant, informing him or her “of the fact and date of the issuance of the . . . warrant, and of the period of authorized eavesdropping or video surveillance, and of the fact that during such period communications were or were not intercepted or observation [sic] were or were not made.” The notice must be served “in no case later than ninety days after termination” of the warrant (CPL 700.50 [3]). The warrant in the present case expired on August 19, 2005. There is no question that the prosecution’s failure to notify defendant of the warrant until his arraignment on December 15 violated the statute.

CPL 700.50 (3) itself does not provide a sanction for its violation. However, under a sister provision, CPL 700.70, which requires the People to give a defendant who has been arraigned a copy of any eavesdropping warrant and accompanying application “within fifteen days after arraignment and before the commencement of the trial,” the penalty for violation is suppression—“[t]he contents of any intercepted communication, or evidence derived therefrom, may not be received in evidence or otherwise disclosed upon a trial of [the] defendant” (CPL 700.70). Moreover, we have held that article 700 “requires scrupulous compliance . . . without such compliance State officials lack authority to wiretap, any interceptions they make are unlawful, and any evidence derived from the wiretap is inadmissible” (People v Capolongo, 85 NY2d 151, 159-160 [1995]). “[F]ailure to comply [with article 700] will generally result in suppression” (People v Bialostok, 80 NY2d 738, 747 [1993]). We thus agree with defendant that the penalty for a violation of CPL 700.50 (3) is, generally, suppression.

The more difficult question is whether a defendant must also show prejudice in order to win suppression under CPL 700.50 (3). As we have noted on more than one occasion, “[t]he purposes of the warrant notification requirement are to publicize wiretaps to the community at large and to those subjected to them and to assure defendants are able to challenge the legality of eavesdropping warrants in a timely manner” (People v Bialostok, 80 NY2d 738, 747-748 [1993], citing People v Hueston, 34 NY2d 116, 122 [1974]).

In People v Hueston, the defendant had actual notice of an eavesdropping warrant through a communication from a third person who had received notice of a phone tap in another jurisdiction; defendant did not receive any timely notice, formal or otherwise, from law enforcement sources. We held that “[w]here actual knowledge of the existence of the warrant is demonstrated within the time period allowed for notification by the prosecution, . . . formal written notification becomes a ministerial act, and the failure to so notify does not require suppression of evidence” (Hueston, 34 NY2d at 122). The purpose of the notification requirement of relevance to the defendant—ensuring the ability to challenge the legality of the warrant—was clearly accomplished, as evidenced by a motion to suppress (id.). In People v Bialostok, we reaffirmed Hueston, holding that suppression was not required, where formal notice of a warrant was untimely but defendant knew through his attorney about the warrant and the nature of the investigation (Bialostok, 80 NY2d at 747).

Hueston and Bialostok stand for the principle that suppression is not required, despite the prosecution’s violation of the terms of CPL 700.50 (3), when the defendant independently knew of an eavesdropping warrant within the prescribed time period. The rationale is that suppression is not justified where, despite the prosecution’s lack of exact adherence to CPL 700.50 (3), the defendant is able to challenge the legality of the eavesdropping warrant in a timely fashion. This rationale implicitly rests on the premise that suppression should not be ordered for a CPL 700.50 (3) violation where there is no prejudice to the defendant.

With this precedent in mind, we make clear that prejudice must be shown in order for a defendant to prevail on a suppression motion under CPL 700.50 (3). The opposite view, which would suppress wiretap evidence for failure to give notice, even when that failure has absolutely no effect on the defendant, ignores the “commonsense balance between the rights of . . . defendant[s] and the needs of law enforcement” (Bialostok, 80 NY2d at 747) that we must always seek to strike. In reaching our decision, we find assurance in the sufficient protection of defendant’s rights afforded by the sister provision, CPL 700.70, which provides for deadlines that are tied to the timeline of prosecution and trial, and which is generally “imposed without regard to the absence of prejudice to a defendant from the delay” (Capolongo, 85 NY2d at 166).

A defendant who relies on CPL 700.50 (3) because, having received pretrial notice within 15 days of arraignment, he cannot rely on CPL 700.70, must show that in some manner he nevertheless suffered prejudice. Here, defendant received notice at arraignment, in accordance with CPL 700.70. No prejudice resulting from the lack of prearraignment notice was shown. Accordingly, the lower courts properly denied suppression.

Defendant further contends that his trial counsel was ineffective, at his sentencing, because counsel failed to challenge the constitutionality of the sentence, in light of the disparity between the penalties suffered by defendant and Cabrera. However, such a challenge would not have been “a winning argument” (People v Turner, 5 NY3d 476, 481 [2005]). In this case, “it cannot be inferred that appellant was punished or further penalized by the sentencing Justice because [he] pleaded not guilty and insisted upon [his] right to a trial” (People v Jones, 39 NY2d 694, 698 [1976]).

We have considered defendant’s other arguments, both those argued by counsel and those raised pro se, and we conclude that they are without merit.

Accordingly, the order of the Appellate Division should be affirmed.

Ciparick, J. (dissenting).

Finding no basis for the majority’s holding that “prejudice must be shown in order for a defendant to prevail on a suppression motion under CPL 700.50 (3)” (majority op at 173), I respectfully dissent and would hold that failure to allege prejudice is not fatal to defendant’s motion.

CPL 700.50 is part of a larger statutory scheme that “exist[s] to safeguard rights protected by the Fourth Amendment” (People v Greene, 9 NY3d 277, 281 [2007]) and reflects “our strong public policy of protecting citizens against the insidiousness of electronic surveillance” (People v Capolongo, 85 NY2d 151, 160 [1995]). In light of that policy, we have “long recognized the importance of fidelity to the statutory directives that govern authorized eavesdropping,” a practice we have deemed “singularly invasive” (People v Darling, 95 NY2d 530, 535 [2000]). Indeed, we have stated that without “scrupulous compliance with article 700 . . . any evidence derived from [a] wiretap is inadmissible” (Capolongo, 85 NY2d at 159-160; see also People v Schulz, 67 NY2d 144, 148 [1986] [“there must be strict compliance with the provisions of New York’s eavesdropping statute (CPL art 700)”]; People v Winograd, 68 NY2d 383, 391 [1986]).

CPL 700.50 (3) provides:

“Within a reasonable time, but in no case later than ninety days after termination of an eavesdropping or video surveillance warrant, or expiration of an extension order . . . written notice of the fact and date of the issuance of the eavesdropping or video surveillance warrant, and of the period of authorized eavesdropping or video surveillance, and of the fact that during such period communications were or were not intercepted or observation^] were or were not made, must be served upon the person named in the warrant and such other parties to the intercepted communications or subjects of the video surveillance as the justice may determine in his discretion is in the interest of justice” (emphasis added).

The purposes furthered by this mandatory notice requirement are twofold: “first, to publicize wiretaps to assure the community that eavesdropping techniques are reasonably employed . . . and, second, to allow defendants in criminal actions to test the legality of the warrants by making timely motions to suppress evidence” (People v Hueston, 34 NY2d 116, 122 [1974]). Although the statute does not prescribe a remedy for its violation, we have repeatedly stated that “failure to comply [with article 700] will generally result in suppression” (People v Bialostok, 80 NY2d 738, 747 [1993]; see also Winograd, 68 NY2d at 391).

We have recognized “limited exceptions,” finding in Hueston and Bialostok that the People’s noncompliance with section 700.50 (3) need not result in suppression where the defendant received actual notice that he was the target of an eavesdropping warrant within the prescribed 90-day period (see Bialostok, 80 NY2d at 747-748; Hueston, 34 NY2d at 121-122). Under those “special circumstances” (Hueston, 34 NY2d at 120), where statutory notice would simply be duplicative, apprising neither the defendant nor the public of any new information, suppression would not serve “any useful purpose” (id. at 122; see Bialostok, 80 NY2d at 747).

Here, by contrast, defendant received neither written notice under CPL 700.50 (3) nor actual notice within the statutory period. Nonetheless, the Appellate Division held that “defendant failed to allege any prejudice that would have warranted a hearing on his suppression argument that the People failed to comply with CPL 700.50 (3)” (People v Rodriguez, 77 AD3d 420, 421 [1st Dept 2010]). The majority holds today that suppression is unwarranted, finding that the rationale of Hueston and Bialostok “implicitly rests on the premise that suppression should not be ordered . . . where there is no prejudice to the defendant” (majority op at 173) and concluding that defendant has not met that burden {id. at 173). However, nothing in our two precedents indicates that where a defendant has not received posttermination notice in any form within the statutory period he or she is obligated to allege anything more to warrant a hearing on the suppression of the intercepted communications. In fact, Hueston provides just the opposite, stating simply that “to suppress the evidence, a defendant must show a failure of notice” (34 NY2d at 120). Here, such failure exists as defendant was not advised of the eavesdropping warrant until his arraignment after the expiration of the statutorily mandated 90-day period.

In my view, critical to Hueston and Bialostok was not merely, as the majority contends, that the defendants were “able to challenge the legality of the eavesdropping warrant in a timely fashion” (majority op at 173), but that the government’s surveillance activities came to light within the 90-day period that the Legislature has deemed reasonable. A rule that conditions suppression—perhaps the only truly effective means of fostering compliance with section 700.50 (3)—on a defendant’s showing of prejudice ignores the fact that the statute’s notification requirement is intended to inure not only to the benefit of defendants but also “to the community at large” CBialostok, 80 NY2d at 748). In diluting the consequences of noncompliance, the majority’s interpretation effectively “render[s] the timeliness requirement a nullity” (People v Gallina, 66 NY2d 52, 56 [1985]) and converts section 700.50 (3) into a discretionary notice provision.

Moreover, the majority’s imposition of a prejudice pleading requirement is not only inconsistent with our most relevant precedent, but also with our treatment of other provisions of article 700. For example, in Gallina, we suppressed evidence obtained in violation of CPL 700.35 (2), requiring removal or “permanent inactivation” of any eavesdropping device upon expiration of a wiretap warrant (see id. at 54, 57). “That no unauthorized eavesdropping may have occurred [was] beside the point, because it is the potential for abuse that is the focus of analysis” (id. at 58 [emphasis added]).

An examination of our holding in People v Marino (49 NY2d 774 [1980]) further illustrates the incongruousness of the majority’s rule. In Marino, we held that the defendant was not entitled to suppression of tapes obtained pursuant to a wiretap warrant as a result of the People’s noncompliance with the issuing court’s instruction to file interim progress reports during the pendency of the wiretap “at least in the absence of any demonstration of substantial prejudice to the defendant” (id. at 775). We noted that the statute at issue, CPL 700.50 (1), “does not itself require the filing of interim reports; rather it authorizes the issuing court to require such reports” (id.). Here, however, the People’s violation is not of a discretionary instruction but an express statutory directive. To impose the same showing of prejudice requirement under these disparate circumstances makes little sense and undermines our long commitment to strict enforcement of article 700.

We have never imposed a prejudice standard and I would not do so here. Today’s holding minimizes the significance of statutory noncompliance. I would thus reverse the judgment and grant a new trial to be preceded by a suppression hearing on the CPL 700.50 (3) notice issue.

Judges Graffeo, Read, Smith and Jones concur with Judge Pigott; Judge Ciparick dissents in a separate opinion in which Chief Judge Lippman concurs.

Order affirmed.


author: Smith, J. Ciparick, J. (dissenting).

text:
    [970 NE2d 399, 947 NYS2d 376]
    In the Matter of the Claim of Wayne Schmidt, Respondent, v Falls Dodge, Inc., et al., Appellants. Workers’ Compensation Board, Respondent.
    Argued March 21, 2012;
    decided May 1, 2012

      POINTS OF COUNSEL

      Gregory J. Allen, General Attorney, State Insurance Fund, Buffalo (John R. Gibbon and Thomas P. Etzel of counsel), for appellants.
    Concurrent schedule and nonschedule awards, each made at the maximum statutory award rate and covering the same period, violate Workers’ Compensation Law § 15 (6). (Matter of LaCroix v Syracuse Exec. Air Seru., Inc., 8 NY3d 348; Matter of Linger v Anchor Motor Frgt., 124 AD2d 350; Matter of Salvet v Union Carbide Linde Div., 135 AD2d 965; Matter of Soper v Gouverneur Talc Co., 243 AD2d 1001; Matter of Miller v North Syracuse Cent. School Dist., 1 AD3d 691; Matter of Lansberry v Carbide/Graphite Group, Inc., 28 AD3d 1031; Matter of Gallman u Walt’s Tree Serv., 43 AD2d 419; Matter of Wilkosz v Symington Gould Corp., 14 AD2d 408, 14 NY2d 739; Matter of Kaminski v Mohawk Carpet Mills, 11 AD2d 827.)

      Eric T. Schneiderman, Attorney General, Albany (William E. Storrs, Barbara D. Underwood and Andrea Oser of counsel), for respondent.
    Claimant’s schedule award for presumed future lost earnings is independent of, and thus not offset by, his temporary disability awards for present lost earnings. (Matter of Landgrebe v County of Westchester, 57 NY2d 1; Matter of Lynch v Board of

      Educ. of City of N. Y., 1 AD2d 362, 3 NY2d 871; Matter of Wilkosz v Symington Gould Corp., 14 AD2d 408, 14 NY2d 739; Matter of Lamantia v Midland El. Co., Inc., 59 AD3d 892; Braschi v Stahl Assoc. Co., 74 NY2d 201; Matter of Mlodozeniec v Worthington Corp., 9 AD2d 21; Uniformed Firefighters Assn., Local 94, IAFF, AFL-CIO v Beekman, 52 NY2d 463; Matter of Warshawsky v DiNapoli, 73 AD3d 1357; Matter of LaCroix v Syracuse Exec. Air Serv., Inc., 8 NY3d 348.)
   OPINION OF THE COURT

Smith, J.

Workers’ Compensation Law § 15 (6) provides that compensation for any disability, partial or total, shall not exceed a fixed maximum per week. At issue in this case is the application of the cap when an employee has received several awards for different injuries, at least one of which is a so-called “schedule loss of use” award being paid periodically pursuant to the pre-2009 version of Workers’ Compensation Law § 25. We hold that in such cases an employee’s total weekly payment may not exceed the cap. The schedule award is not nullified by the other awards, but must be deferred until the time comes when the cap will not be exceeded.

I

Plaintiff worked as a collision shop technician, repairing automobiles. He suffered several injuries on the job, of which three, all occurring in 2005, are relevant to this appeal. On February 21, he slipped on ice, injuring his hip and back. On March 18, he suffered a lower back sprain. He left his job on June 27, and later reported hearing loss beginning on that date, attributable to loud noise at his place of work. He applied for and received workers’ compensation benefits for all three injuries.

For the hip and back injuries, the workers’ compensation carrier for claimant’s employer was directed, in separate awards, to pay claimant a total of $400 per week—the maximum allowed, at the relevant time, under Workers’ Compensation Law § 15 (6). Though the disabilities caused by the hip and back injuries were designated as “temporary,” nothing in the record indicates that these $400 weekly payments have ever been discontinued.

On September 21, 2007, a Workers’ Compensation Law Judge made an award for the hearing loss claim. Claimant was found to have a permanent partial disability, entitling him to a schedule loss of use award under Workers’ Compensation Law § 15 (3). As we explained in Matter of LaCroix v Syracuse Exec. Air Serv., Inc. (8 NY3d 348, 353 [2007]):

“[T]he [Workers’ Compensation Law] provides compensation for four different types of injury: permanent total disability, temporary total disability, permanent partial disability and temporary partial disability (Workers’ Compensation Law § 15 [1], [2], [3], [5]). In the case of permanent total disability, an employee is awarded payment of a percentage of wages during the continuance of the disability; the same is true for temporary total disability and temporary partial disability (see Workers’ Compensation Law § 15 [1], [2], [5]). Permanent partial disability, however, is called a schedule loss of use award because the statute assigns—as by a ‘schedule’—a fixed number of lost weeks’ compensation according to the bodily member injured (see Workers’ Compensation Law § 15 [3]).”

The Judge in this case found that claimant’s hearing loss entitled him to 32.145 weeks of benefits at the rate of $400 per week; the award specified a period from September 27, 2005 (the “date of disablement” found by the Judge) to May 10, 2006. After considering the carrier’s objections, the Judge concluded on November 23, 2007 that the schedule award was “currently payable in full,” notwithstanding the fact that claimant had received during the period in question, and was still receiving, $400 per week for his other claims. The Judge found the issue to be controlled by Matter of Miller v North Syracuse Cent. School Dist. (1 AD3d 691, 692 [3d Dept 2003]), in which the Appellate Division held that because a schedule award “is not allocable to any particular period,” it “cannot be deemed to overlap with” a temporary total disability award.

Also relying on Miller, a panel of the Workers’ Compensation Board affirmed the Judge’s order and the Appellate Division affirmed the Board’s decision (see Matter of Schmidt v Falls Dodge, Inc., 67 AD3d 1303 [3d Dept 2009]). We granted leave to appeal (16 NY3d 714 [2011]), and now reverse.

II

Workers’ Compensation Law § 15 (6) (a) says, in relevant part:

“Compensation for permanent or temporary partial disability, or for permanent or temporary total disability due to an accident or disablement resulting from an occupational disease that occurs ... on or after July first, nineteen hundred ninety-two [and before July one, two thousand seven], shall not exceed four hundred dollars per week.”

The Board and the Appellate Division have held in this case that claimant was entitled to receive $800 per week for a period of roughly 32 weeks. That result cannot be squared with the cap imposed by section 15 (6). The Appellate Division’s decision in Miller, which upheld a similar award, is incorrect and should not be followed.

The basis for the Miller court’s conclusion was that although Workers’ Compensation Law § 25 (1) (b) (until its amendment by L 2009, ch 351, § 1) required “periodic payment” of schedule awards (LaCroix, 8 NY3d at 355), the allocation of such awards to any particular period of time is arbitrary. A schedule award is compensation for a partial permanent disability, not a disability existing only during the weeks when the award is paid. Therefore, under the reasoning of Miller, there is no reason why an employee who suffers a temporary disability from one injury, and a permanent partial disability from another, cannot receive both awards—periodic payments for the temporary disability, and a schedule award for the permanent one.

This reasoning is sound as far as it goes. There is no reason why a claimant may not recover a schedule loss of use award in addition to a temporary disability award. The Miller court erred, however, in allowing a claimant to recover both at the same time, with the result that weekly payments exceeded the statutory cap. A claimant entitled to a schedule award that is to be paid periodically must wait until his other disability payments have ceased, or have dipped below the cap, to be paid his schedule award.

A contrary holding would not only contradict the plain language of section 15 (6), but would produce anomalous results. A worker who was permanently totally disabled in 2005—a quadriplegic, for example—can receive no more than $400 per week for his or her disability. It makes no sense for a worker who suffered a hip injury, lower back pain and hearing loss in that year to receive $800 per week. Nor can it be said that time will eliminate the anomaly—i.e., that in the long run no claimant will recover an average of more than $400 per week— because no one can say when, if ever, a “temporary” disability will end. Disabilities initially labeled “temporary” may be reclassified as permanent (indeed, the carrier in this case has annexed to its brief documents showing that claimant’s back sprain has now been so reclassified); or they may turn out to be permanent in fact. In such a case, the rule of Miller would permit a partially disabled claimant to recover, over his or her working life, more than a totally disabled one.

We therefore hold that periodic payments of a schedule loss of use award must be deferred to the extent that those payments, when combined with payments of another disability award, would exceed the cap imposed by Workers’ Compensation Law § 15 (6). We hold no more than this, and do not decide what implications, if any, our holding may or may not have for cases governed by the 2009 amendment to section 25 (1) (b): that section, as amended, now says that schedule loss of use awards “shall be payable in one lump sum, without commutation to present value upon the request of the injured employee.”

Accordingly, the order of the Appellate Division should be reversed, with costs, and the case remitted to the Appellate Division with directions to remand it to the Workers’ Compensation Board for further proceedings in accordance with this opinion.

Ciparick, J. (dissenting).

Because I agree with the Workers’ Compensation Board (the Board) and the Appellate Division that a “schedule loss of use award” for a permanent partial disability is not linked to a particular time period, but rather is compensation for future loss of earnings without regard to present ability to work, and because I further believe that a schedule award should not be offset by a temporary disability award for present lost earnings, I respectfully dissent.

In Matter of Miller v North Syracuse Cent. School Dist. (1 AD3d 691 [3d Dept 2003]) the Appellate Division held that a scheduled award was not allocable to any particular period of disability and therefore “[a] schedule award cannot be deemed to overlap with [a] claimant’s temporary total disability award covering that period” (id. at 692). The Appellate Division subsequently reenforced this holding in Matter of Lansberry v Carbide/Graphite Group, Inc. (28 AD3d 1031, 1032 [3d Dept 2006] [“The schedule award is intended to compensate (claimant) for future loss of earnings due to his hearing loss, and thus, the two awards do not overlap”]).

Since the decisions in Matter of Miller and Matter of Lansberry, the Legislature has extensively restructured the Workers’ Compensation Law. Notably in 2007, “a comprehensive reform of the Workers’ Compensation Law was enacted as a result of years of negotiations by the Governor’s Office, the Legislature, the Board and representatives of business and labor” (Matter of Raynor v Landmark Chrysler, 18 NY3d 48, 53 [2011]). The legislative history of this comprehensive overhaul of the Workers’ Compensation Law neither cites to Matter of Miller or Matter of Lansberry, nor does the language of the legislation make any effort to affect the impact of these decisions. “It is well settled that the legislative history of a particular enactment must be reviewed in light of the existing decisional law which the Legislature is presumed to be familiar with and to the extent it left it unchanged, that it accepted” (Matter of Knight-Ridder Broadcasting v Greenberg, 70 NY2d 151, 157 [1987]). Furthermore, “[w]here the interpretation of a statute is well settled and accepted across the State, it is as much a part of the enactment as if incorporated into the language of the act itself’ (id.). Because the Legislature is presumed to be aware of the decisions in Matter of Miller and Matter of Lansberry, and as it did not comment on or make any change to blunt the effects of these decisions, it must be assumed that it intended to incorporate the holdings—that schedule awards do not overlap with temporary total disability awards—into the existing law.

That the Legislature did not intend to overturn the holdings in Matter of Miller and Matter of Lansberry is even more evident when considering the 2009 revision to the Workers’ Compensation Law. That revision was made in direct response to our holding in Matter of LaCroix v Syracuse Exec. Air Serv., Inc. (8 NY3d 348 [2007]). In Matter of LaCroix we held that a schedule award could not be paid in a lump sum because former Workers’ Compensation Law § 25 (1) “explicitly require[d] periodic payment” and section 25 (1) (b) could not be read “to include a one-time payment” (id. at 354-355). The Legislature, in 2009, amended Workers’ Compensation Law § 25 (1) (b) and § 15 (3) (u) in order to allow for a worker to receive a schedule award in a lump sum (see L 2009, ch 351, §§ 1, 2, 2009 McKinney’s Session Laws of NY, at 1063). That the Legislature amended the law to overturn the holding in Matter of LaCroix, while leaving the holdings of Matter of Miller and Matter of Lansberry intact clearly indicates that the Legislature intended for the monies received by an injured worker for a schedule award for a permanent partial disability—in this case, partial loss of hearing—to be temporally independent of any other monies received as a result of other workers’ compensation awards. Moreover, the Legislature now allows for a schedule award to be received in a lump sum, further indicating that such an award is independent of the maximum weekly compensation as provided for by Workers’ Compensation Law § 15 (6).

The majority seeks to interpret the statute in such a way as to avoid “anomalous results” (majority op at 182-183), since a contemporaneous payment of both a schedule and non-schedule award could result in a weekly payment in excess of the statutory maximum. However, the Legislature has made it clear that it agrees with or at the very least acquiesces in the holding of Matter of Miller and it is not the purpose of this Court to substitute its judgment for that of the Legislature (see Montgomery v Daniels, 38 NY2d 41, 56 [1975]).

Finally, we have long held that the Workers’ Compensation Law is remedial in nature and “that compensation should be given ... to the employee . . . for earning capacity destroyed by an accident in the course of or connected with his work” (Matter of Waters v Taylor Co., 218 NY 248, 251-252 [1916]). As stated earlier, the purpose of a “schedule loss of use” award is to compensate for future loss of earning capacity (see Matter of Miller, 1 AD3d at 693). It is clear that the Legislature, through its recent amendments, has expressed a desire to expedite the payment of such schedule awards where possible, and not hold them in abeyance for a period while a claimant may continue to receive other disability awards that together would exceed the statutory maximum. This indefinite period of time, as adopted by the majority, wherein payment for a schedule award would be deferred, can result in considerable hardship to a claimant and is not in keeping with the remedial and protective scheme of the Workers’ Compensation Law (see Matter of Waters, 218 NY at 251).

Accordingly, I would permit the overlap of payments, although currently exceeding the statutory maximum, and affirm the order of the Appellate Division. The question of whether such overlap is permissible allowing for the “anomalous” situation identified by the majority is best left to the Legislature to determine.

Judges Gbaffeo, Read, Pigott and Jones concur with Judge Smith; Judge Cipabick dissents and votes to affirm in a separate opinion in which Chief Judge Lippman concurs.

Order reversed, etc.