Opinion
# 2020-051-034 Claim No. 129488 Motion No. M-95267 Motion No. M-95388 Motion No. M-95396 Cross-Motion No. CM-95475
12-11-2020
ALI TUCKETT v. STATE OF NEW YORK
NEUFELD, SCHECK & BRUSTIN, LLP BY: NICK BRUSTIN, ESQ. HON. LETITIA JAMES New York State Attorney General BY: TAMARA B. CHRISTIE, ESQ. Assistant Attorney General
Synopsis
Case information
| UID: | 2020-051-034 |
| Claimant(s): | ALI TUCKETT |
| Claimant short name: | TUCKETT |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129488 |
| Motion number(s): | M-95267, M-95388, M-95396 |
| Cross-motion number(s): | CM-95475 |
| Judge: | DEBRA A. MARTIN |
| Claimant's attorney: | NEUFELD, SCHECK & BRUSTIN, LLP BY: NICK BRUSTIN, ESQ. |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General BY: TAMARA B. CHRISTIE, ESQ. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 11, 2020 |
| City: | Rochester |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read on defendant's motion in limine for preclusion of proposed polygraph testimony from three proposed/anticipated witnesses (M-95267), claimant's motion in limine to permit his counsel to ask leading questions during direct examination at trial of law enforcement witnesses (M-95388), claimant's motion in limine to preclude testimony on the "Child Sex Abuse Accommodation Syndrome" (M-95396) and defendant's cross motion in limine for preclusion of claimant's rebuttal expert (CM-95475):
M-95267
1. Notice of Motion in Limine with Affirmation of Tamara B. Christie, AAG, and attached exhibits, filed February 11, 2020;
2. Affirmation in Opposition of Mary K. McCarthy, Esq. with attached exhibits, filed February 19, 2020;
3. Affirmation of Tamara B. Christie, AAG with attached exhibit, with attached exhibits, filed February 25, 2020;
4. Letter Brief of Mary K. McCarthy, Esq. emailed to the Court on November 19, 2020;
5. Letter Brief of Tamara B. Christie, AAG emailed to the Court on November 25, 2020
M-95388
6. Notice of Motion in Limine with Affirmation of Amelia Green, Esq. and attached exhibit, filed March 4, 2020;
7. Affirmation in Opposition of Tamara B. Christie, AAG with attached exhibit, filed March 9, 2020;
8. Affirmation of Amelia Green, Esq., filed July 24, 2020; M-95396/CM-95475
9. Notice of Motion in Limine with Affirmation of Nick Brustin, Esq. and attached exhibits, filed March 9, 2020;
10. Amended Affirmation in Opposition of Tamara B. Christie, AAG with attached exhibit, filed March 13, 2020;
11. Notice of Cross Motion in Limine with attached Affirmation of Tamara B. Christie, AAG with attached exhibits, filed March 12, 2020.
12. Affirmation of Mary McCarthy, Esq. with attached exhibits, dated August 25, 2020
M-95267
Defendant moves in limine to preclude the testimony of claimant's polygraph expert, Dr. Charles R. Honts, and any fact or opinion witness regarding the administration and results of the polygraph test to claimant. The test was given by Jacqueline Schuman, a polygraph examiner with the Rochester Police Department (RPD), to claimant during RPD's investigation of the allegations of sexual abuse by claimant of his minor cousin. According to claimant's expert disclosure, Dr. Honts is expected to testify that the results of the test were "strongly truthful", which result would have been evident at the time, and that the methodology used by the RPD polygraph examiner were flawed. Furthermore, claimant seeks to present testimony from himself and other fact witnesses that RPD investigator Charles LoFaso misrepresented that claimant failed the polygraph.
Defendant argues that polygraph results are not admissible at trial in New York, a premise with which claimant agrees. Claimant states that he seeks to admit the polygraph evidence for these "narrowly tailored" purposes: (1) law enforcement misreported to claimant's family that he failed the polygraph test, thus influencing their testimony at trial; and (2) law enforcement's misrepresentation of the test results damaged his family relationships because once the family was given the incorrect information by RPD, they stopped communicating with claimant. Claimant also argues that damaged relationships is a component of his damages claim.
The cases cited by claimant all focus on the limited exception to the inadmissibility of polygraph results, namely when the voluntariness of a confession is an issue for the jury to consider. (People v Leonard, 59 AD2d 1, 14-15 [2d Dept 1977]; People v Kogut, 10 Misc 3d 245, 247 [Nassau Sup Ct 2005].) Here, claimant did not confess, and has consistently professed his innocence, so voluntariness of a confession is not an issue.
The Court grants defendant's motion and precludes any evidence regarding the polygraph test administration, the results, or the alleged misrepresentation of the results by RPD. The Court agrees with defendant that the use of this evidence for the reasons stated by claimant are tenuous and it appears that claimant is focused on replaying the criminal trial to prove how the allegedly flawed evidence presented by the DA, the inadequate investigation by RPD, and the skewed testimony by family members resulted in the conviction. At oral argument, claimant's counsel argued that even if the polygraph evidence is excluded, they still intend to call LoFaso and Shulman to demonstrate how RPD failed to interview family members and check school records that would have shown the alleged abuse could not have occurred when the boy said it did. Indeed, the lengthy deposition of Mr. LoFaso focused on his understanding of accepted police protocol and whether his investigation in this case met those standards.
The Court cautions claimant that if this is their strategy at trial, they will face further relevancy issues. The claimant's burden of proof in an 8-b trial is to show actual innocence by clear and convincing evidence, not to provide a critique of the performance of RPD. The cases cited by claimant do not support his position. In an 8-b case, the conduct of the police or DA is only relevant in cases involving a coerced confession, which is not the issue here. (e.g.Warney v State, 16 NY3d 428, 437 [2011]; Gristwood v State, 119 AD3d 1414, 1416 [4th Dept 2014].)
Regarding claimant's argument that the misrepresentation of the polygraph results turned claimant's family against him and started a compensable alienation of their affections, the law is clear that the relevant time frame for the damage evidence is from the date of "conviction to the end of imprisonment, subject presumably to any subsequent or continuing damages shown to have proximately resulted from those incurred during said period." (Carter v State, 139 Misc 2d 423, 429 [Ct Cl 1988], affd, 154 AD2d 642 [2d Dept 1989]; see also Gristwood v State, 119 AD3d 1414, 1418 [4th Dept 2014].) The activities by RPD, and the affect the alleged misrepresentation of the polygraph result had on the claimant and his family members during the trial, all occurred before the conviction and are irrelevant.
M-95388
Claimant moves in limine to permit his counsel to ask leading questions of RPD witnesses LoFaso and Schuman during direct examination because they are adverse witnesses. Claimant's counsel cited Mr. LoFaso's deposition transcript as a basis for their position that he is hostile and aligned with the defendant. Counsel repeated their strategy of intending to call Mr. LoFaso at trial to demonstrate his allegedly inadequate investigation and the negligent or intentional misrepresentation of the polygraph results. As the Court points out above, this line of questioning is irrelevant. To the extent that Mr. LoFaso is called by claimant as a trial witness for other purposes, the Court reserves decision on whether he is a hostile witness.
M-95396/CM-95475
Claimant moves to preclude defendant from offering any testimony on "Child Sex Abuse Accommodation Syndrome" (CSAAS). Defendant cross moves to preclude claimant's proposed rebuttal witness, Kamala London, PhD, on this issue.
The defendant's expert disclosure dated February 12, 2020, noticed the testimony of Stefan G. Perkowski, a state-certified social worker, and described his anticipated testimony as including "an explanation of the range of a victim's behavior observed in cases of child sexual victimization", including "fear, embarrassment, self-blame, loathing and self-protective behaviors." He is expected to discuss common characteristics in children who report sexual abuse, such as "initial denials, incremental disclosure of sexual abuse, non-specific or incorrect dates of alleged abuse, a pattern of secrecy, helplessness, entrapment and accommodation, delayed disclosure and recantation." Further, he is expected to testify "about the effect that close familial relationships have on a child's disclosure" of abuse against a family member and to explain why a person might recant and that recantation does not mean the abuse did not occur. He is also expected to refute testimony by claimant's experts, if any. The disclosure does not mention CSAAS, but it is referenced in his curriculum vitae.
In anticipation that this expert will opine on CSAAS, claimant's motion takes direct aim against the validity of CSAAS, a theory that holds that abused children exhibit a syndrome of five behavioral responses: secrecy, helplessness, entrapment and accommodation, delayed, conflicted and unconvincing disclosure, and retraction." (State v J.L.G., 190 A3d 442, 446 [NJ 2018].) Claimant's rebuttal expert, Dr. London, stated that CSAAS is not based on scientific data, has never been subjected to peer review, is not recognized by the American Psychiatric Association or the American Psychological Association, and is not included in the DSM-V. (id.) Claimant argues that a clinical social worker is not qualified to critique scientific research on CSAAS. Finally, although testimony regarding CSAAS and, specifically by Mr. Perkowski, has been held admissible, claimant argues that there has never been a Frye hearing in a New York court on the admissibility of CSAAS testimony.
Claimant relied almost exclusively on the decision in State v J.L.G as if it were indicative of the recent and universal rejection of CSAAS testimony by courts that have reviewed its admissibility. (id.) However, a review of state and federal court's decisions after J.L.G reveals that the admissibility of CSAAS testimony is overwhelmingly allowed:
"Kentucky is one of only six states that traditionally rejected CSAAS testimony on the grounds that it lacks scientific reliability. However, even of these six states, only Kentucky and Tennessee have adopted an iron-clad prohibition against all manner of CSAAS testimony, devoid of any exceptions. Every other jurisdiction that has taken a position on CSAAS testimony has recognized at least one exception. The broadest form of admissibility occurs in the Eighth and Ninth Circuit Courts of Appeals, the D.C. Circuit Court of Appeals, and twenty-eight state courts that have permitted expert testimony to explain generally the common traits of sexually abused children. Other courts have limited an expert's CSAAS testimony to instances where the victim exhibited a specific trait of the syndrome, or for the purpose of rehabilitating a witness's credibility [citing People v Spicola, 61 AD3d 1434, 1435 [4th Dept 2009], affd, 16 NY3d 441 (2011)]. Altogether, forty-one states recognize the admissibility of CSAAS expert testimony for some purpose.
These changes to the landscape are in large part attributable to the growing scientific acceptance of CSAAS in state and federal courts. In fact, most state courts have accepted CSAAS as scientifically reliable under either the Daubert or Fyre test, depending on which standard is employed in a given jurisdiction. In the thirty years since our Bussey decision, social scientists have supported the scientific validity of CSAAS (particularly as it relates to recantation and delayed disclosure). Not only have empirical studies supported the reliability of the syndrome when it comes to explaining delayed disclosure, strong support for the other elements of CSAAS (secrecy, helplessness, and accommodation) is also present in these studies. This Court's once "tried-and-true" objections to CSAAS on the basis of lack of scientific acceptance and reliability (while still "tried") are simply no longer 'true.' "
(King v Commonwealth, 472 SW3d 523, 534-36 [Ky 2015] [dissent] [internal citations omitted].)
It appears there are only two aspects of CSAAS that may be relevant in this case: that which explains the alleged eight-month delay in the 11-year old victim's reporting of the event, and the recantation by the victim from the approximate age of 16 through the future trial when, at the approximate age of 20 he is expected to repeat the recantation. The J.L.G. court did opine that CSAAS testimony could be presented regarding the delayed disclosure by the child victim of the alleged abuse, if it satisfied all parts of the applicable evidence rule:
"In particular, the State must show that the evidence is beyond the understanding of the average juror. That decision will turn on the facts of each case. Here, because the victim gave straightforward reasons about why she delayed reporting abuse, the jury did not need help from an expert to evaluate her explanation. However, if a child cannot offer a rational explanation, expert testimony may help the jury understand the witness's behavior."
(State v J.L.G., 90 A3d 442, 446 [NJ 2018].)
New York courts have allowed expert testimony, even that of Mr. Perkowski, in criminal trials to counter defense attempts to challenge the credibility of the child victim's delayed reporting of the alleged abuse, specifically because such behavior may be beyond the ken of the jury. (see People v Carroll, 95 NY2d 375, 387 [2000]; People v Spicola, 61 AD3d 1434, 1435 [4th Dept 2009], affd, 16 NY3d 441 [2011]; People v Miles, 294 AD2d 930 [4th Dept 2002].) Although no Frye hearing was referenced in those decisions, the courts were clearly presented with the same arguments made by claimant and the opinions of Dr. London, but allowed the limited testimony to explain the behaviors of the victim that may be outside the knowledge and experience of the jury; that is, the CSAAS expert is offered to educate the jury that abused children do delay reporting the abuse but that does not mean it didn't happen.
Here, defendant argues that claimant is relying on the delay in reporting and the recantation as proof that the abuse did not occur and defendant proffers Mr. Perkowski opinions on the general behavior of abused children. In claimant's counsel's reply affirmation, she denied that claimant will argue that the victim's accusation was incredible because of delayed reporting and stated that their case is based solely on the recantation. At oral argument, claimant's counsel argued that Mr. Perkowski was not qualified to testify regarding the recantation by an adult, and that CSAAS does not apply to adults. Defense counsel offered that her disclosure was broad and she expected Mr. Perkowski's testimony to be narrow, maybe not even addressing CSAAS, but was intended to counter the testimony of claimant's psychologist, Dr. Patrick Ewing. Defendant's cross motion seeks to preclude the rebuttal testimony of Dr. London on the unreliability of CSAAS evidence because the disclosure was made after the expert disclosure deadline. Claimant countered that it was made after the defendant disclosed Mr. Perkowski and the realization of the potential for CSAAS evidence.
The Court accepts claimant's counsel's statement that claimant's case is based solely on the credibility of the recantation, and that he will not attack the victim for delayed reporting. Although the victim was a teenager when he first recanted, he will be in his twenties at the time of the trial, and no argument was presented that CSAAS is reliable to assess adult behaviors. That being the case, CSAAS is irrelevant.
However, claimant's expert disclosure of Dr. Ewing described his potential testimony as "regarding the psychological phenomenon of young children making false sexual allegations without understanding the consequences and then becoming "locked into" those false stories, making it difficult for them to recant." This description, coupled with the fact that Dr. Ewing was disclosed by the claimant in the criminal case as a defense expert on CSAAS, raises the potential that Dr. Ewing will present CSAAS-esque theories without referring to the acronym. In fairness, Mr. Perkowski's opinion would be admissible to counter those opinions. Therefore, the Court reserves on claimant's motion, subject to the findings herein.
Ironically, the prosecution disclosed Mr. Perkowski, but neither expert testified at the criminal trial. --------
The defendant's cross motion is denied because the trial date is not yet set and there is no prejudice to the defendant. However, given the predictably narrow testimony by either Dr. Ewing or Mr. Perkowski on this topic, it is doubtful that Dr. London's testimony will be necessary.
December 11, 2020
Rochester, New York
DEBRA A. MARTIN
Judge of the Court of Claims