People v Froehlich
Annotate this CaseDecided on April 25, 2011
Sullivan County Ct
The People of the State of New York,
against
Frederick Froehlich, IV, Defendant.
13-2011
John R. Kelly, Esq.
246 East Broadway
Monticello, New York 12701
Attorney for Defendant
Hon. James R. Farrell
Sullivan County District Attorney
Sullivan County Courthouse
Monticello, New York 12701
By: Bonnie M. Mitzner, ADA, of counsel
Attorney for the People
Frank J. LaBuda, J.
The defendant was indicted by Indictment #13-2011 on the charge of Sexual Abuse in the First Degree as defined in New York Penal Law § 130.65.
The People moved for an order pursuant to CPL § 65.20(11) declaring Alyssa Guest a vulnerable child witness and authorizing the taking of the testimony of said Alyssa Guest by means of live, two way closed circuit televison.
The defendant submitted an affirmation in opposition and alleges the federal and state constitutions protect his right to confront the witness. The defendant claims a hearing must be held to determine if the child is in fact vulnerable and unable to testify in open court. [*2]
The defendant also submitted a supplemental affirmation, in the nature of a cross motion, seeking an order precluding statements obtained from him pursuant to the CPL § 710.30 notice and striking testimony obtained at the previously held Huntley Hearing regarding a polygraph examination.
The People submit an affirmation in opposition to defendant's cross motion.
VULNERABLE CHILD
The primary purpose of the statute authorizing use of live two-way closed circuit television as a method of permitting certain child witnesses to give testimony in sex crime cases is the avoidance of severe mental or emotional harm that may result from requiring a child witness to testify in court concerning intimate details of the crime. In re Noel O., 19 Misc 2d 418 (2008).
This Court conducted a hearing on March 16, 2011.
Initially, the People maintain its request for an order declaring the victim a vulnerable witness was made in error pursuant to CPL § 65.20(11). The people maintain the proper statute is CPL § 65.20(1).
This Court finds the error in citing the proper statute harmless error which did not prejudice the defendant as he participated in the hearing.
Based upon the testimony of the expert witnesses and the nature of the alleged crime, this Court grants the motion of the People and finds the five year old victim a vulnerable child pursuant to CPL § 65.20 et seq. and will allow the child to testify by two-way closed circuit television. People v. Martin, 294 AD2d 850 (4th Dept. 2002) lv denied 98 NY2d 711 (2002).
DEFENDANT"S CROSS MOTION
This Court conducted a Huntley Hearing on March 2, 2011.
At the hearing, the testimony of the People's witnesses revealed the defendant was given his Miranda warnings on three separate occasions. The defendant waived the warnings and gave a written statement. There was also a taped conversation that was admitted into evidence at the hearing. The defendant also consented to a polygraph examination. The defendant now contends his statements were not voluntarily made. [*3]
The Court finds the statements of the defendant were voluntarily, knowingly and intelligently made after being given his Miranda warnings on three occasions. People v. Rifkin, 289 AD2d 262 (2nd Dept. 2001) lv denied 97 NY2d 759 (2002). The defendant was given notice that he made statements to the police as required by CPL § 710.30. Since the defendant participated in the Huntley Hearing, his request that his statements should now be suppressed is without merit. People v. Garcia, 290 AD2d 2009 (1st Dept. 2002), lv denied 98 NY2d 730 (2002).
Although the results of a polygraph examination are not admissible at trial, statements given by defendants during or after the polygraph examination are admissible. People v. Bermen, 46 AD3d 1019 (3rd Dept. 2007) lv denied 10 NY3d 808 (2008).
Based upon the above, it is
ORDERED, that the People's request for an order pursuant to CPL § 65.20 is granted.
ORDERED, that the relief sought by the defendant is in all respects denied and as a result, the all statements of the defendant shall be admissible at trial.
This shall constitute the Decision and Order of this Court.
Dated: April 25, 2011
Monticello, New York
Hon. Frank J. LaBuda
Sullivan County Court Judge
and Surrogate
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