People v Carrington

[*1] People v Carrington 2008 NY Slip Op 50458(U) [18 Misc 3d 1147(A)] Decided on March 6, 2008 County Court, Westchester County Bellantoni, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 6, 2008
County Court, Westchester County

The People of the State of New York, Plaintiff,

against

Daniel Carrington, Defendant.



07-0637



ADA Christopher Daniele

ADA Christine Hatfield

Westchester County District Attorney's Office

111 Dr. Martin Luther King Jr., Blvd.

White Plains, New York 10601

Richard Ferrante, Esq.

399 Knollwood Road

Suite 111

White Plains, New York 10603

Rory J. Bellantoni, J.

By Indictment Number 07-0637, Defendant has been charged with the following crimes:

(i) Rape in the First Degree; (ii) two counts of Criminal Sexual Act in the First Degree and (iii) two counts of Endangering the Welfare of a Child.

The charges arise from an incident where Defendant allegedly raped and sexually abused a three year old child. Defendant is also alleged to have endangered the welfare of that child victim and her then 7 year old brother who allegedly witnessed the abuse.

Defendant was arraigned on the instant indictment and entered a plea of not guilty to all counts contained therein. By Notice of Motion filed on July 6, 2007 by the Legal Aid Society, Defendant's prior attorney of record, Defendant sought various relief. The Legal Aid Society was initially assigned to represent Defendant, however, on September 20, 2007, the Legal Aid Society moved to be relieved from representing Defendant in the instant matter. The Court granted the legal Aid Society's motion and appointed Richard Ferrante, Esq. as new counsel for Defendant. As will be discussed below, Mr. Ferrante adopted the relief sought in the Legal Aid Society's omnibus motion and supplemented the initial motion to dismiss the indictment with another motion to dismiss the instant Indictment.

1. Motion to Inspect Grand Jury Minutes and Dismiss or Reduce Indictment;

Motion to Dismiss Defective Grand Jury Proceedings.

Initially, Defendant moved this Court to inspect the Grand Jury minutes and, upon such inspection, sought the dismissal or reduction of counts charged in the instant indictment, challenging the legal sufficiency of the evidence presented, and the propriety of the legal instructions provided to the grand jury. The People opposed Defendant's motion, but consented to an in-camera inspection of the Grand Jury minutes. The Court was provided with the Grand Jury minutes and inspected them in-camera . Matter of Brown v. LaTorella, 229 AD2d 391, 645 NYS2d 508 (2nd Dep't 1996); Matter of Brown v. Rotker, 215 AD2d 378, 625 NYS2d 643 (2nd Dep't 1995).

Following an in-camera review of the grand jury minutes, the Court had doubts as to [*2]whether the evidence before the Grand Jury was legally sufficient; specifically, whether the child witness provided sworn or unsworn testimony, and if unsworn, whether the proper corroboration evidence was present and the proper instruction was given. The Court felt that release of the Grand Jury minutes to defense counsel might be necessary to assist the Court in making its determination on Defendant's motion to dismiss or reduce the indictment. On October 4, 2007, the Court gave the People an opportunity to present arguments demonstrating why the release of the Grand Jury minutes "would not be in the public interest" pursuant to CPL § 210.30(3). Upon hearing arguments from both sides, the Court determined that release of the minutes was necessary as the Court needed informed adversarial submissions from the People and Defendant. Attorney General of State of New York v. Firetog, 94 NY2d 477, 706 NYS2d 666, 727 NE2d 1220 (2000); see, People v. Salvato, 12 Misc 2d 88, 176 NYS2d 698 (Ulster County 1958)(court granted defendant's motion to release grand jury minutes where a child witness testified before the grand jury). The Court released the minutes to Defendant's new counsel; after having had an opportunity to review the Grand Jury minutes, on November 19, 2007, Defendant filed a motion seeking to dismiss the instant Indictment alleging that the proceedings were defective and not supported by legally sufficient evidence. The People renewed their objection to Defendant's motion to dismiss the Indictment. Acknowledging that perhaps a first hand viewing of the examination of the child's grand jury testimony would provide the Court with a clearer impression of the child's testimonial capacity, the People provided, and the Court readily accepted, Grand Jury Exhibit 1, which was the videotape recording of the child witness' testimony for the Court's review.

When considering a motion to dismiss an indictment, the relevant inquiry concerns the legal sufficiency of the evidence, not the weight or adequacy of the proof presented. See, People v. Galatro, 84 NY2d 160, 615 NYS2d 650 (1994). Legally sufficient evidence has been defined as competent evidence which, if accepted as true, would establish Defendant's commission of each and every element of each offense charged. CPL §70.10(1); see also, People v. Jensen, 86 NY2d 248, 630 NYS2d 989 (1995); People v. Jennings, 69 NY2d 103, 512 NYS2d 652 (1986). In the context of grand jury procedure, this has been held to mean proof of a prima facie case, not proof beyond a reasonable doubt. See, People v. Gordon, 88 NY2d 92, 643 NYS2d 498 (1996); People v. Mikuszewski, 73 NY2d 407, 541 NYS2d 196 (1989). Moreover, the Court, in evaluating the sufficiency of the evidence, must determine whether the evidence, when viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury. See, People v. Swamp, 84 NY2d 725, 622 NYS2d 472 (1995); People v. Pelchat, 62 NY2d 97, 476 NYS2d 79 (1984).

A witness is not deemed incompetent, as a matter of law, solely based on age. Wheeler v. United States, 159 U.S. 523, 16 S. Ct. 93 (1895). CPL § 60.20(2) states that any witness over the age of nine (9) years old may testify as a sworn witness; for a witness who is less than nine (9) years old, there exists a rebuttable presumption that their testimony may not be received as sworn testimony unless the court is satisfied that the child understands the nature of an oath. "A witness understands the nature of an oath if he or she appreciates the difference between truth and falsehood, the necessity for telling the truth, and the fact that a witness who testifies falsely may be punished." CPL § 60.20(2). If however, the child witness cannot be sworn, the child witness may still provide unsworn testimony provided that other corroborating evidence exists. Id. Thus, [*3]the issue in the instant case is whether the then seven (7) year old child victim that testified, via videotape, before the Grand Jury, understood the nature of the oath and agreed to testify truthfully.

CPL § 190.30(6) states, in pertinent part, that "[w]herever it is provided in article sixty that the court in a criminal proceeding must rule upon the competency of a witness to testify or upon the admissibility of evidence, such ruling may, in an equivalent situation in a grand jury proceeding, be made by the district attorney." (Emphasis added). Thus, a district attorney is not the only one who can rule on the testimonial capacity of a witness; "the word may' in its natural and ordinary sense does not import a command, but merely signifies permission, ability or possibility, and generally it denotes that the action is optional with the person concerned, or rests in the discretion of the body to which permission is given. Therefore, the Court is not precluded by [CPL § 190.30(6)] from also qualifying a witness before a grand jury." People v. DiFabio, 131 Misc 2d 1072 at 1073, 502 NYS2d 323 (Monroe County 1986). While a prosecutor has a right to determine a child witness' capacity to testify as a sworn witness before a grand jury pursuant to CPL § 190.30(6), a defendant also "has the right to expect that all of the evidence and critical determinations by the district attorney be reviewable by the court upon a motion to inspect and dismiss." People v. Rivera, 141 Misc 2d 14 at 17, 532 NYS2d 660 (Kings County 1988); CPL § 210.20; CPL § 210.30.

Perfunctory, one-word, or non verbal responses to mostly leading questions do not demonstrate that a child witness understands that there is a special moral duty to tell the truth while under oath, even if the child witness can differentiate between a truth and a lie. People v. Maldonado, 199 AD2d 563, 606 NYS2d 258 (2nd Dep't 1993); see generally, People v. Brill, 245 AD2d 384, 666 NYS2d 195 (2nd Dep't 1997)(court found that child witness understood that she had a moral duty to tell the truth); People v. Davis, 304 AD2d 421, 760 NYS2d 12 (1st Dep't 2003)(court found that child witness could only give unsworn testimony; while child knew the difference between the truth and a lie, court found that child lacked an understanding of the nature and consequences of an oath).

When a child's competency has been called into question, courts have included the voir dire examination of the child witness in its decisions, or at least, the pertinent parts. People v. Shellman, 9/4/90 N.Y.L.J. 24, (col 5); People v. Smith, 104 AD2d 160, 481 NYS2d 879 (2nd Dep't 1984). In this case, the Court feels it is necessary to include the entire voir dire as the entire examination is at issue before the Court. While the Court is reluctant to include this examination and understands that it is unusual for a court to include twelve (12) pages of a voir dire, such inclusion is essential to put in context the discussion of the issues and the Court's reasoning and decision. Thus, the following represents a redacted version of the relevant portions of the child/ witness' voir dire.

Also present is this little boy right here. He is actually a big boy, and his name is S.M.

QHe is - - how old is he?

A7.

Q7 years old.

And his birthday is?

AWhat? [*4]

QWhen is your birthday?

ASeptember 5, 1999.

QAnd he's the witness who will testify. Now, tell me your name again. What's your name? This is it. What's your name?

AS.

QAnd what is your last name?

AM.

QAnd how old are you?

A7.

QAnd really when are you - - when are you going to be 8?

A(No audible response)

QDo you know when you are going to be 8?

AUhuh.

QDo you know where you live?

A(No audible response)

QWho do you live with? Let's say that.

AMy mom.

QDo you know your mom's name? What is that?

AR.C.

QAnd do you have any brothers or sisters you live with?

AYes.

QYou live with a brother?

AYeah.

QWhere is that brother?

AIn my mom's stomach.

QIn your mom's belly? He is not born; right?

ARight.

QDo you know what his name is going to be?

AYes.

QWhat is the name? What is it?

AG. (ph).

QG.?

AYes.

QAnd do you have any sisters?

AYes.

QWhat are their names?

AB. (ph) and K.

A(sic)B. And K.? What's B.'s real name? Do you know what other name she goes by?

AUhuh.

QHave you ever heard anybody call her A.?

AYup.

QNow, what grade are you in?

A2nd. [*5]

QAnd where do you go to school right now? Do you know?

ARight now, I just came from school, because Mommy called me.

QDo you know where you are going, though, what's the school?

AElementary.

QElementary school?

Come back here, S.

AOh.

QWe are going to stay focused okay? Now, do you know who God is? Come closer. Do you know who God is? I'm going to hold this just for now, and you can play with it later. Okay. Do you know who God is?

ANo.

QDo you know who God is?

ANo.

QHave you ever been to church?

ANo.

QWhere does God live?

ANo. Nowhere.

QYou don't know where he lives?

ANo.

QDoes he live with you?

AYes.

QWhere does God live?

AIn our house.

QWe talked about it before. Where does he live?

A(Indicating).

QWhere is that?

A(Indicating). Up in the sky.

QUp in the sky? And do you go to church? Have you ever been to church?

AYeah.

QWho takes you there?

AMy mother does.

QIs God an important person?

AYes.

QIs it important to tell the truth to God?

AYes.

QNow, is it important to tell the truth to everybody?

AYes.

QIf I said that this room was pink polka dots, is that the truth or a lie?

ALie.

QWhat color is the truth?

AYellow.

QYellow?

AWith spots, with dogs. [*6]

QYeah. Now, what happens if you don't tell the truth, if you told a lie? What happens to you?

A(No audible response)

QWhat would Mommy say to you? Would she be happy or sad?

AMad.

QShe would be mad?

AUhuh.

QIf you told a lie, would God be happy or mad?

AMad.

QIs it a good thing or bad thing to tell a lie?

AA bad thing.

QDo you get punished if you tell a lie or do a bad thing?

ANo.

QWould you get punished - - would someone yell at you?

AYeah.

QWho would yell at you, S.? We are not done. Come on back. Who would yell at you if you told a lie?

AMommy.

QWhat color is this (indicating)?

ABlue.

QIf I said that you were wearing a skirt, is it the truth or a lie?

AThe truth.

QYou are wearing a skirt?

ANo, I mean, a lie.

QIf I said you were wearing sneakers, is that the truth or a lie?

AA lie.

QLook at your feet and tell me.

AThe truth - - a lie, because I have feet.

QYou have feet but those feet are inside what kind of shoes? If you said you were wearing sneakers on your feet, is that the truth or a lie?

AWhat about if you said my feet don't light up?

QWell, I don't know if they light or not. Do they light up? If I were to say your sneakers light up, is that the truth or a lie?

AThe truth.

QI can't hear you.

AThe truth.

QOkay. You hot? Let's take this off, okay?

AAnybody looking?

QWell, where is the camera? Can you see the camera?

AYeah.

QNow, is it important - - how important is it to tell the truth right now about what we are going to talk about?

A(No audible response) [*7]

QHow important?

AReally important.

QReally important? Could you get in a lot of trouble if you don't tell the truth? Don't look at what I have here, honey. Could you get into a lot of trouble?

AYes.

QOkay. So do you promise right now you are going to tell the truth?

AUhuh. Yes, I play with the toys.

QI want you - - have you ever seen this before? Don't take it. Do you know what this is?

ANo.

QDo you know about what the Bible is?

ANo.

QWhat is this book about? Who is it about?

AGod.

QGod? And is this an important book?

A(No audible response)

QIs this an important book, a special book?

AYes.

QOkay. And if I asked you to put your hand on here and swear that you are going to tell the truth, you are swearing you are going to tell the truth to God, and can you do that?

AYes.

QIf you upset God and you tell a lie, you can make him very mad and get into a lot of trouble; is that right? So can you promise to tell the truth so God won't get mad, and you will tell the truth?

AYeah.

QI'm going to tell you to put your hand on it, okay? Put your hand, just go like this, put your hand - -

(Indicating)

ABut God - - (inaudible) It's going (inaudible) to make a fire.

QJust say do you swear to tell the truth? Do you swear to tell the truth?

AWho me?

QWill you tell the truth right now?

AYes.

QAbout all the questions I'm going to ask you about Daniel Carrington?

ANo.

QWill you tell the whole truth?

ANo.

QThe truth and nothing but the truth?

ANo.

QWhat do you mean no?

AIf God - - the police said - -

QAre you going to tell the truth?

AYes.

QDo you promise? [*8]

AYes.

QSwear that you are going to tell the truth?

ANo - - yes, yes.

QIt is not a joke. Are you going to tell the truth or not?

AYes.

QAnd what will happen if you don't tell the truth?

APunish.

QWhat will happen?

APunished. I will get punished.

QYou will get punished?

A(No audible response)

QCan you do this? Can you do it?

AYup. Yup.

QThis is about very important things. And we don't want - - we want to only know what really happened because that's the only way that we can help you and your sister. Are you going to tell the truth?

AYeah.

QYou promise?

AMaybe.

QMaybe or yes for sure, because there is no maybe here. This movie doesn't accept a maybe and God doesn't accept a maybe. You are going to have to swear you definitely going to tell only the truth. Can you do that? Are you afraid right now?

AYes.

QWhat are you afraid of?

AMyself.

QWhy are you afraid of yourself?

ABecause - -

QWhy?

AGod is going to punish me.

QWell, God won't punish you if you tell the truth. God will not be upset with you, no matter what you say if it is the truth. You will not get in trouble; right? So can you promise to tell what really happened?

A(Indicating)

QS. I want you to look right in the camera and promise to tell the truth.

AI promise to tell the truth.

QOkay.

AWho is looking?

QNobody is looking right now. But will you promise?

AI promise.

QOkay. Look at me, sit down right here (indicating). I want you to sit right on this seat (indicating).

AOkay.

QRight in front of this pillow, and not move until we are done. [*9]

A(Laughing)

QOkay. Who is Daniel Carrington? Who is that? Have you ever heard of him?

ANo.

The Court relied on the above examination, the entire Grand jury minutes and the videotape testimony of the child in its decision herein. As will be further discussed below, the Court finds that the child witness did not give sworn testimony.

When simple questions were presented to the witness by the prosecutor, such as whether the witness, a male child, was wearing a skirt, the child initially stated that it was the "truth" that he was wearing a skirt, when in fact he was not. The prosecutor also asked the child if he was wearing sneakers and, even though he was in fact wearing sneakers, the assistant had to ask twice before the child acknowledged that it was true that he was wearing sneakers. When asked about God, where God lived and about the Bible, the child was unable to answer these questions until repeatedly questioned by the prosecutor. Further, when asked specifically about the Bible, the child stated twice that he did not know what it was; when asked about God or where he lived, the witness answered five (5) times that he did not know who God was or where he lived.

Despite what appears to be an understanding of the proceedings, the child never gave an unequivocal answer that he would tell the truth. This is further bolstered by the fact that the very first time that the prosecutor asked the child whether he would tell the truth, the child answered: " Uhuh. Yes, I play with toys." Grand Jury minutes, p. 13, line 25. After this answer, the prosecutor subsequently asked the child if he would promise to tell the truth, at least thirteen (13) times, the child gave different answers at different moments during the voir dire- - he answered "no" three (3) times, "yes" six (6) times, "maybe" once [FN1] (1) and then responded "who me?" and "no, yes, yes" when posed the same question on two other separate occasions. Even though the witness did answer in the affirmative that he would tell the truth, these "yes" answers were not unequivocal affirmations. The fact that the assistant kept asking the same question, demonstrates that the answers given by the child were insufficient, especially since the witness kept changing his answers to the questions. If a witness, over the age of nine (9), who by statute is presumed to be competent, gave completely different answers when asked to swear to tell the truth at least thirteen (13) times, the Court is hard pressed to believe that any tribunal would find that witness truthful or that he/she knew the consequences of an oath or that he/she understood the nature of an oath.

Further, the Court was concerned by the child's refusal to put his hand on the Bible stating that "it's going to make a fire" (Grand Jury minutes, page 15, lines 9-10 and Grand Jury Exhibit 1), and subsequently stating that he was afraid of himself and that God would punish him. The Court cannot and will not speculate why the child gave these answers, but when read in conjunction with the child's answers given when the prosecutor specifically asked if the witness would tell the truth about Daniel Carrington and the child answered four times in the negative [*10](Grand Jury minutes, page 15, lines 16 - 22 and page 18, lines 20-22), the answers are troubling to the Court.

It was only after persistent prodding and asking leading questions and eventually demanding that the child look at the camera and promise to tell the truth that the prosecutor finally elicited the answer that she was seeking. However, merely getting the answer does not establish that the child understood that he had a moral duty to tell the truth and/or that he understood the nature of an oath. The Court cannot hold, from reading the transcript and viewing the videotape, that the child understood the nature of the oath; if one finds that the transcript/videotape demonstrates that the child understood the nature of the oath, then it would appear that the child was deliberately refusing to tell the "truth". Either way, the child never unequivocally stated that he would tell the truth. The child's varied answers to the prosecutor's questions cannot be rehabilitated by merely asking the same questions over and over or demanding that the child affirmatively state that he promise to tell the truth, especially after the witness repeatedly states that he would not or that he would "maybe" tell the truth. See generally, People v. Shellman, 9/4/90 N.Y.L.J. 24, (col 5)(New York County)(the prosecutor attempted to rehabilitate the child witness by eliciting that he thought he would get a spanking if he told a lie and that he did not tell lies, however, the child's response did not reflect a true appreciation of the significance of an oath or the depth of responsibility of a witness while under oath.)

Further, the Court had the unique opportunity to view the child's demeanor, body language, facial expressions and level of attentiveness while being "voir dired" by the prosecutor. The child refused to make eye contact with the prosecutor for most of the examination, seemed extremely distracted, and at one point the prosecutor had to physically pick him up and sit him down next to her to be able to question him. The Court also was able to view the prosecutor's demeanor; the assistant district attorney's frustration evident in reading the transcript, was even more evident in the videotape - - her voice inflection, attempts to get the child to cooperate, taking items away from him, asking him to stay focused; and, finally, in her frustration, the assistant's questions seemed more like commands. Finally, on page 18 of the Grand Jury examination, the prosecutor states: "S., I want you to look right in the camera and promise to tell the truth." The minutes reflect that the child answered "I promise to tell the truth", however, the Court had the opportunity to see the child's demeanor in the videotape when he uttered these words; he avoids eye contact with the prosecutor, puts his hands on top of his head and slightly nods "yes" and then laughs. This hardly demonstrates that the witness appreciated the significance of an oath or the depth of responsibility of a witness while under oath.

Based upon an in-camera review of the grand jury minutes, the child's videotaped testimony, court file, motion papers and case law, this Court finds that the prosecutor improperly allowed the seven (7) year old child to testify as if under oath. Even if the child could not have been sworn as a witness, the Court is aware that the child could have testified as an unsworn witness. However, there is no other corroborating evidence, on this record, that was presented to the Grand Jury. Since this child witness' testimony was the only evidence presented to the Grand Jury linking the Defendant to the alleged sexual abuse of the three (3) year old child, the Court has no other option but to grant Defendant's motion to dismiss the Indictment. However, such dismissal is granted with leave to the People to represent the instant matter to another Grand [*11]Jury.

This decision must not be interpreted to mean that the seven (7) year old child witness cannot be sworn, but rather, that the record is devoid of a proper showing that the child witness understood the nature of the oath, and/or agreed to testify in accordance therewith.

All other branches of Defendant's omnibus motion are denied as moot.

The foregoing constitutes the decision and order of the Court.

Dated: March 6, 2008___________________________________

White Plains, New YorkHon. Rory J. Bellantoni, J.C.C.

ADA Christopher Daniele

ADA Christine Hatfield

Westchester County District Attorney's Office

111 Dr. Martin Luther King Jr., Blvd.

White Plains, New York 10601

Richard Ferrante, Esq.

399 Knollwood Road

Suite 111

White Plains, New York 10603 Footnotes

Footnote 1: In fact, when the child says "maybe" the prosecutor states "maybe or yes for sure, because there is no maybe here. This movie doesn't accept a maybe and God doesn't accept a maybe. You are going to have to swear you definitively going to tell only the truth." Grand Jury minutes, p.17, lines 7 - 10. The ADA was clearly demanding and persistently suggesting the answer that she wanted the witness to give.