People v Dockery 2015 NY Slip Op 32576(U) June 9, 2015 Supreme Court, Kings County Docket Number: 2856/2014 Judge: Danny K. Chun Cases posted with a

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1 People v Dockery 2015 NY Slip Op 32576(U) June 9, 2015 Supreme Court, Kings County Docket Number: 2856/2014 Judge: Danny K. Chun Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication.

2 [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: CRIMINAL TERM PART )( THE PEOPLE OF THE STATE OF NEW YORK MARCELL DOCKERY, -against- DECISION AND ORDER IND. NO. 2856/2014 Defendant )( DANNY K. CHUN, J. The defendant moves to offer expert testimony regarding the field of interrogations and false confessions, or in the alternative, for a Frye hearing. The People oppose. The defendant is charged with Murder in the Second Degree (P.L [3]) and other related charges. It is alleged that on April 6, 2014, the defendant started a fire in a hallway in an apartment building which resulted in the death of one police officer and injury to another. On May I, 2014, at the defendant's arraignment, the defendant stated that he intended to introduce expert testimony regarding false confessions. On August 8, 2014, this court granted the defendant's request to have Dr. Richard J. Ofshe, a sociologist, be appointed as a defense's expert pursuant to New York County Law Article 18B. On March 4, 2015, this court denied the defendant's motion to suppress following a Huntley/Dunaway/Wade/Mapp hearing. Dr. Ofshe did not testify at the suppression hearing. The defendant then moved to permit Dr. Ofshe to testify at trial, or in the alternative, for a hearing pursuant to Frye v. United States, 293 F (D.C. Cir. 1923). This court reserved its decision until after the suppression hearings were conducted. Specifically, the defendant states that Dr. Ofshe would testify regarding research that purports to identify certain conditions or characteristics of an interrogation that might induce someone to confess falsely to a crime. The People oppose arguing that such expert evidence invades the province of the jury and is unreliable. 1

3 [* 2] New York courts have almost unanimously held that so-called "expert" testimony in the area of false confessions is not admissible. See People v. Bedessie, 19 N.Y.3d 147 (2012); People v. Rosario, 100 A.D.3d 660 (2d Dept 2012); People v. Mutteroerl, 97 A.D.3d 699 (2d Dept 2012); People v. Walker, 87 A.D)d 1352 (4th Dept 2011); People v. Crews, 74 A.D.3d 983 (3d Dept 2010); People v. Ragsdale, 68 A.D.3d 897 (2d Dept 2009); People v. Herrnkind, 49 A.D.3d 555 (2d Dept 2008); People v. Days, 31 A.D.3d 574 (2d Dept 2006), lv. Denied 7 N.Y.3d 811; People v. Shepard, 259 A.D.2d 775 (3d Dept 1999); People v. Green, 250 A.D.2d 143 (3d Dept 1998). The Court of Appeals addressed this issue for the first time in People v. Bedessie, and held that while there may be cases where expert testimony on the phenomenon of false confessions should be admitted, the proposed testimony "must be relevant to the defendant and interrogation before the court." Bedessie, 19 N. Y.3d at 161. This court is aware of only two cases in which false confession testimony was even admitted. People v. Kogut, 10 Misc.3d 305 (Nassau County 2005), and the recent case of Pedro Hernandez about the disappearance of Etan Patz. In Kogut, the court allowed an expert to testify regarding the phenomenon of eliciting false confession finding that the voluntariness of the defendant's confession was central to that case because of the absence of corroborating evidence other than the hair sample allegedly found in the codefendant's vehicle. In Hernandez, the only evidence in the case was the defendant's confession and some other statements to non-law enforcement personnel without any other corroborating evidence. Also, in Hernandez, the defendant had a lengthy history of mental illness. The admissibility and limits of expert testimony are primarily matters for the sound discretion of the trial court. People v. Lee, 96 N.Y.2d 157, 162 (2001); People v. Cronin, 60 N.Y.2d 430, 433 (1983). 2

4 [* 3] -' ( This court finds that the testimony proposed by the defendant does not meet the Bedessie standard. The defendant states that Dr. Ofshe has relevant testimony to give regarding the oral, written and videotaped confessions the defendant, a 16-year-old minor with no prior criminal record, made. Specifically, the defendant states that Dr. Ofshe would discuss the psychological research and scientific findings concerning the voluntariness of confessions and the tendency of certain techniques to contribute to a false confession. However, this court finds that such testimony is not relevant to this particular defendant or the interrogation techniques and methods used in this case. On the day of the incident, the detectives first met the defendant on the street while he was with his grandfather. When asked whether he would be willing to come to the precinct to talk to them, the defendant agreed. The defendant was not under arrest at this point. The detective that testified at the Huntley hearing stated that when the defendant first arrived at the precinct, he was free to leave. Before the defendant was interviewed, he was placed in an interview room alone with the door opened, and was not handcuffed. The defendant was asked whether he needed anything to eat or drink. Furthermore, based on the evidence adduced at the Huntley hearing, this court finds that the defendant understood and voluntarily waived his rights under Miranda, and made his statements voluntarily and knowingly. Reviewing the video-taped statement of the defendant, this court does not see any need to allow a defense expert in the issue of false confession. There was no evidence that the police officers present during the defendant's interrogation engaged in trickery, deception or any other type of coercive interrogation techniques. The interrogation was not excessively lengthy nor carried out in any such manner that may be conducive to the defendant falsely admitting to a crime. In addition, contrary to the defendant's assertion, there are corroborating evidence apart from the defendant's statements. There are at least two witnesses who placed the defendant in 3

5 [* 4] the hallway of the apartment where the fire allegedly started. There is also video surveillance footage showing the defendant enter the apartment building and getting off the elevator on the floor of the fire prior to the fire. While this court is not bound by the decision of Kogut, this case is nonetheless clearly distinguishable from that case. Furthermore, the defendant in this case, unlike Hernandez, has not demonstrated any history of mental illness or any medical condition that may potentially put his mental capacity at issue. Therefore, from the facts this case presents, there would be no relevant testimony that a confession expert would be able to give. If defense raises any issue concerning the voluntariness of the defendant's statement at trial, a jury would amply be able to decide the issue. Wherefore, the defendant's motion to offer expert testimony regarding the field of interrogations and false confessions is denied, and therefore, there is no need for a Frye hearing. The foregoing constitutes the decision of the court. Dated: Brooklyn, New York June 9,