People v. Rosario

20 Misc. 3d 401
CourtNew York Supreme Court
DecidedApril 14, 2008
StatusPublished

This text of 20 Misc. 3d 401 (People v. Rosario) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Rosario, 20 Misc. 3d 401 (N.Y. Super. Ct. 2008).

Opinion

OPINION OF THE COURT

Darrell L. Gavrin, J.

The defendant, Argelis Rosario, was indicted by a grand jury for three counts of course of sexual conduct against a child in the first degree (Penal Law § 130.75) and endangering the welfare of a child (Penal Law § 260.10). The People allege that from 1997 through 2004, the defendant (born in 1983) anally raped, orally sodomized, and otherwise sexually abused a child who was 5 to 11 years of age at the time. (People’s mem of law, Feb. 19, 2008, at 2.)

Under indictment No. 2631/2006, the defendant was indicted for bail jumping in the first degree (Penal Law § 215.57) for failure to appear in court on July 10, 2006, after being released on bail in this case. Indictment No. 2631/2006 was consolidated for trial with this indictment by an order dated May 4, 2007, signed by Honorable James P Griffin.

By notice of motion dated August 27, 2007, the defendant moved for an order allowing expert testimony by Richard J. Ofshe, Ph.D., “regarding the existence of false confessions, namely, that individuals may be coerced into giving false confessions and that certain indicia may be identified to show when false confessions are likely to occur.” In support of this request, the defendant submitted an affirmation from his attorney which asserted that “the defense position is that the defendant’s statements were the result of coercive psychological interrogation techniques applied by Detective Malloy.” (Para 21.) The court granted defendant’s motion to the extent of directing that a Frye hearing be held prior to trial.

On August 14, 2007, this court had conducted a Huntley hearing pursuant to an order dated May 3, 2007. At that hearing, [403]*403Detective Antoin Malloy testified that the defendant was placed under arrest on June 21, 2006 at the 112th Precinct where the special victims squad is located. The defendant appeared there at about 11:30 a.m. and was informed by the detective that he was being arrested for engaging in sexual acts with a minor. The defendant was given the Miranda warnings and thereafter admitted that he had engaged in oral and anal sexual acts with the complainant. Pursuant to the detective’s request, the defendant wrote and signed a statement, admitting this conduct, and. agreed to make a videotaped statement. At 4:00 p.m., a videotaped interview of the defendant was conducted by an assistant district attorney during which the defendant repeated his admissions.

The defendant did not testify at the suppression hearing. He called two witnesses on his behalf, Kenner Rosario and Noe Suazo. They testified that at approximately 6:00 a.m. on June 21, 2006, Detective Malloy and another officer broke into their house, looking for the defendant. When the police officers were informed that the defendant was in Philadelphia, they told the witnesses that the defendant had an open case and could be arrested and spend 25 years in jail, unless he reported to the precinct by 1:00 p.m. that day. According to the defense witnesses, this “threat” was relayed to the defendant by telephone, after the police left.

The court did not credit the testimony of the two defense witnesses at the Huntley hearing concerning the circumstances that led to defendant’s appearance at the 112th Precinct on June 21, 2006. Upon a review of the testimony of Detective Malloy and of the videotaped interview, the court concluded that the defendant voluntarily appeared at the precinct and that his oral, written and videotaped statements were given “freely and voluntarily without any compelling influence” and thus were admissible in evidence. (People v Jackson, 41 NY2d 146, 151 [1976].) Therefore, defendant’s motion to suppress these statements was denied in all respects. (See People v Rosario, Sup Ct, Queens County, Sept. 26, 2007, Gavrin, J.)

The Frye hearing to determine if expert testimony regarding false confessions would be admissible at trial was held on December 19 and 20, 2007 and January 2, 2008. The sole witness, called by the defendant, was Dr. Richard J. Ofshe. Before the hearing commenced, defense counsel conceded that the proffered testimony of Dr. Ofshe, sought to be introduced at trial, related solely to defendant’s interrogation by the police after he [404]*404arrived at the precinct. The testimony did not concern any threats allegedly made to induce the defendant to appear at the precinct. (Transcript of minutes of Frye hearing at 12-13.)

Richard J. Ofshe, Ph.D., is Professor Emeritus in the Department of Sociology at the University of California at Berkeley, where he has been on the faculty since 1968. He holds a Bachelor’s degree in psychology and a Master’s degree in sociology from the City of New York, Queens College. In 1968 he received a doctorate in sociology from Stanford University in California. Dr. Ofshe has written and lectured extensively on police interrogation techniques and their influence on a person’s decision to confess. He has worked both with law enforcement and defense counsel. Dr. Ofshe has been recognized, in both federal and state courts, as an expert in the field of coercive psychological police interrogation which may lead to false confessions. (See United States v Hall, 93 F3d 1337 [1996]; Boyer v State, 825 So 2d 418 [Fla 2002]; Carew v State, 817 NE2d 281 [Ind 2004].) Dr. Ofshe has testified on the effects of police interrogation and has been referred to as an expert in numerous cases involving a claim of “false confession” resulting from psychological police coercion. (See Boyer v State at 419 n 1.)

Despite his impressive background, the People contend that Dr. Ofshe is not a qualified expert on the influence of police interrogation. The People assert that he is not a licensed psychologist and has not conducted any clinical work or studies in the area of false confessions. His research is limited to reviewing case files and transcripts and interviewing suspects who have been interrogated, and the cases he reviewed were not selected using scientific methods. Moreover, he relied on the Chicago-based Reid method of interrogation and has no knowledge of interrogation practices used by the New York City Police Department. Additionally, the number of times he was qualified as an expert on “influence in police interrogations” was unsubstantiated. The court has carefully considered the People’s contentions regarding the “expert” status of the witness. However, based on his credentials and extensive recognition, the court finds Dr. Richard J. Ofshe a qualified expert on psychologically coercive police interrogation techniques.

In Frye v United States (293 F 1013 [1923]), decided in 1923, the District of Columbia Court of Appeals, in a two-page opinion, set forth requirements for the admissibility of expert opinion that prevail in New York to date. The Frye court (at 1014) observed: “When the question involved does not lie within the [405]*405range of common experience or common knowledge, but requires special experience or special knowledge, then the opinions of witnesses skilled in that particular science, art, or trade to which the question relates are admissible in evidence.” The court continued that “while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs” (id.).

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Bluebook (online)
20 Misc. 3d 401, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-rosario-nysupct-2008.