People v. Thomas

46 Misc. 3d 945, 998 N.Y.S.2d 590
CourtNew York County Courts
DecidedNovember 17, 2014
StatusPublished
Cited by2 cases

This text of 46 Misc. 3d 945 (People v. Thomas) is published on Counsel Stack Legal Research, covering New York County Courts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Thomas, 46 Misc. 3d 945, 998 N.Y.S.2d 590 (N.Y. Super. Ct. 2014).

Opinion

OPINION OF THE COURT

Barbara G. Zambelli, J.

The defendant Clarence Thomas has been indicted for murder in the second degree and manslaughter in the first degree allegedly committed on or about March 14, 2013 in the County of Westchester, reckless assault of a child and assault in the second degree allegedly committed on or about February 6, 2013 in the County of Westchester and, acting in concert with co-defendant Kayan Johns,1 endangering the welfare of a child allegedly committed on or about and between February 6, 2013 and March 14, 2013 in the County of Westchester. He now moves by order to show cause and affirmation in support with attachments for a Frye hearing on shaken baby syndrome (SBS), also known as abusive head trauma (AHT). The People’s response consists of an affirmation in opposition and a memorandum of law. Defendant also submitted a reply affirmation with attachments, and the People submitted a surreply thereto. Upon consideration of these papers, as well as review of the grand jury minutes and exhibits and the consent discovery order entered in this case, the motion is disposed of as follows:

Defendant brings this motion for a Frye hearing on SBS/AHT, arguing that “there is no basis in fact for this theory” and that SBS/AHT is no longer generally accepted in the particular field in which it belongs, which defendant asserts is biomechanics and not medicine, as he submits that medicine concerns itself with diagnoses and biomechanics addresses causation. Defend[947]*947ant further argues that even if medicine is the appropriate field, SBS/AHT is no longer “clearly” accepted in the medical community (Pachnanda affirmation ¶¶ 37, 38, 40, 42, 44). Thus, defendant submits a Frye hearing is required herein, and further seeks an order granting preclusion of the “testimony, opinion and any evidence, including but not limited to, models, dolls and demonstrations proffered regarding Non-Accidental Trauma (Shaken Baby Syndrome/Abusive Head Trauma).”

The People oppose the motion, arguing that it should be denied without a hearing. The People argue that SBS is generally accepted within the relevant scientific community, which community, they submit is the medical field. In support of their argument, the People reference numerous New York cases which recognize SBS/AHT and submit that the New York State Legislature enacted Penal Law § 120.02, reckless assault of a child, one of the crimes for which defendant is charged, specifically to address cases of SBS/AHT. They further argue that, at any trial herein, the defense will be able to cross-examine their experts and defendant will have an opportunity to present his own experts to refute the conclusions of the People’s experts.

In reply, defendant argues that the legislative intent behind Penal Law § 120.02 is irrelevant, and that the statute is unconstitutional. He further argues that to the extent that the People rely upon Matter of Lou R. (131 Misc 2d 138 [Fam Ct, Onondaga County 1986]) as the seminal case in New York recognizing SBS/AHT, that this case defined SBS/AHT as resulting from “seemingly harmless shaking” and here, the People’s theory is that SBS/AHT is violent shaking. He further argues that this case is of dubious precedential value, given that it cites no medical or scientific studies. Defendant also argues that in opposing his motion, the People failed to address the current state of the medical and biomechanical communities’ acceptance of SBS/AHT. Defendant further argues that since the People have failed to refute defendant’s “scientific and medical evidence debunking” SBS/AHT, the grand jury minutes should be reexamined and the indictment dismissed. Defendant also moves to reopen the pretrial hearings in this matter, as he submits, the determination regarding the granting of a Frye hearing goes directly to whether there was probable cause to arrest him. In surreply, the People object that the defendant’s arguments as to the unconstitutionality of Penal Law § 120.02, for the reinspection of the grand jury minutes and dismissal of the indictment and for the reopening of the pretrial hearing, are all improperly [948]*948raised for the first time in reply and should not be considered by this court. They further submit that in any event, they are without merit, as they dispute defendant’s contention that SBS/ AHT is no longer generally accepted by the scientific community.

In New York, expert testimony based upon scientific principles or procedures is admissible only after that principle or procedure has gained general acceptance in the relevant field (People v Wesley, 83 NY2d 417, 422 [1994], citing Frye v United States, 293 F 1013 [DC Cir 1923]). As Chief Judge Kaye explained in her concurring opinion in People v Wesley, it is not for courts “to determine whether the method was or was not reliable . . . but whether there was consensus in the scientific community as to its reliability. The Frye test emphasizes counting scientists’ votes, rather than on verifying the soundness of a scientific conclusion” (83 NY2d at 439 [internal quotation marks and citations omitted]). It is not the job of the court to decide which expert’s conclusions are correct (Marsh v Smyth, 12 AD3d 307, 311 [1st Dept 2004]). Moreover, a Frye hearing is not required where the expert testimony offered does not involve any novel procedures or innovative scientific theories (see Lipschitz v Stein, 65 AD3d 573, 575-576 [2d Dept 2009]; People v Spencer, 108 AD3d 1081, 1082 [4th Dept 2013], lv denied 22 NY3d 1159 [2014]; People v Garrow, 75 AD3d 849 [3d Dept 2010]) and need not be held where the court can rely on previous rulings in other court proceedings to aid it in determining the admissibility of the proffered testimony (People v LeGrand, 8 NY3d 449, 458 [2007]).

As an initial matter, while defendant argues that the relevant scientific community should be those working in the field of biomechanics and not medicine, this argument is unavailing. In support of his contention that SBS is no longer a viable theory defendant himself cites to the work of several physicians, including John Plunkett, M.D., an expert proffered by him. Defendant’s contention that physicians are limited to diagnosing conditions and not determining causation is belied by the fact that physicians frequently testify in court regarding causes of injury and death in a wide variety of criminal and civil matters. Additionally, numerous courts have recognized physicians as being qualified to give expert testimony regarding whether a child had SBS/AHT (see e.g. People v Van Norstrand, 85 NY2d 131 [1995]; Matter of Infinite G., 11 AD3d 688 [2d Dept 2004]; People v Goodridge, 251 AD2d 85 [1st Dept 1998]; People v Moore, 112 AD3d 981 [3d Dept 2013]; People v Benjamin, 204 AD2d 996 [949]*949[4th Dept 1994]; Matter of Lou R., 131 Misc 2d 138 [Fam Ct, Onondaga County 1986]).

Defendant’s request for a Frye hearing is denied. Prior New York case law recognizes SBS/AHT as being generally accepted in the relevant scientific community (Matter of Antoine J., 185 AD2d 925 [2d Dept 1992]; People v Yates, 290 AD2d 888 [3d Dept 2002]; Matter of Lou R.; Mastowski v Superintendent, 2011 WL 4955029, *19, 2011 US Dist LEXIS 120060, *58 [WD NY, Oct. 18, 2011, No. 10-CV-0445T] [“New York courts have held that shaken baby syndrome is no longer a scientific theory”]).

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Cite This Page — Counsel Stack

Bluebook (online)
46 Misc. 3d 945, 998 N.Y.S.2d 590, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-thomas-nycountyct-2014.