Defendant was indicted for two counts of first degree rape (PL § 130.35 [2] & [4]), two counts of endangering the welfare of a child (PL § 260.10 [1]), and one count of unlawfully dealing with a child (PL § 260.20 [2]), and defendant moved to suppress a statement he made to Sheriff's Department Investigator William Welling and a letter he wrote to the victim. A hearing was held on March 12, 2007.

On June 19, 2006, Investigator Welling was contacted at home and asked to go to Olean General Hospital to begin a rape investigation. After speaking with the victim, Welling went to defendant's residence and asked if he would talk with Welling about the incident. Because there were other people present in defendant's home, Welling and defendant went to a Burger King in Olean. Defendant rode in the front of the car, uncuffed and unshackled. At the restaurant, they spoke about the incident and Welling took down the information on his laptop. Before they left, Welling told defendant not to have any contact with the victim but if defendant wanted to write [*2]the victim, Welling would insure that she received whatever defendant wrote. Defendant then wrote a note to the victim and gave it to Welling.

After the hearing, the court denied the motion to suppress the statements and scheduled a trial. Defendant has since served notice that he intends to call as a witness Richard Leo, Ph.D., J.D., who will testify that defendant's statement is false "in whole or part," and that Welling's techniques and methods were "defective" and "likely to produce inaccurate statements." Significantly, there was very little cross-examination at the hearing about any techniques or methods employed by Investigator Welling. The District Attorney has now moved to preclude Dr. Leo's testimony on the grounds that it has not gained general acceptance in the scientific community, is irrelevant, and would usurp the jury's fact finding function.

Clearly, the court would not allow Dr. Leo to testify that the statement given by defendant is false as that is a question exclusively for the jury. With respect to the other issues, New York continues to rely on the Frye test for the admissibility of novel evidence (see Frye v. United States, 293 F 1013 [DC Cir. 1923]; People v. Wernick, 89 NY2d 111, 651 NYS2d 392 [1996]); Parker v. Mobil Oil Corp., 7 NY3d 434, 824 NYS2d 584 [2006]). Part of the Frye criteria is that the testimony must be based on principles that are generally accepted in the relevant scientific community (People v. LeGrand, 8 NY3d 449, 835 NYS2d 523 [2007]; Wernich, 89 NY2d 111, 651 NYS2d 392 [1996]); People v. Wesley, 83 NY2d 417, 611 NYS2d 97 [1994]).

The Third Department has excluded this kind of testimony on the basis that it lacked the "certainty that would give it probative force" (People v. Green, 250 AD2d 143, 683 NYS2d 597 [3d Dept 1998], lv denied 93 NY2d 873, 683 NYS2d 597 [1998]; People v. Lea, 144 AD2d 863, 534 NYS2d 588 [3d Dept 1998], lv denied 73 NY2d 857, 537 NYS2d 503 [1988]; see also People v. Phillips, 180 Misc 2d 934, 692 NYS2d 915 [Sup Ct, Queens County 1999], affd 30 AD3d 618, 818 NYS2d 229 [2d Dept 2006], lv denied 8 NY3d 949, 836 NYS2d 559 [2007], recon denied 8 NY3d 989, 838 NYS2d 492 [2007]; People v. Jeannot, Ind. No. 67 N-05 [Nassau County Court, September 15, 2005, Sullivan J.); People v. Ragsdale, Ind. No. 4578/02 [Sup Ct, Kings County, April 2, 2004, Hall, J.] ). Further, in People v. Howard (294 AD2d 874, 741 NYS2d 482 [4th Dept 2002]), the Appellate Division in our Department held that the trial court properly precluded expert testimony concerning a victim's veracity and suggestibility.

Defendant references two cases in support of his contention that the testimony should be admitted, People v. Williams, Ind. No. 99-131 [Cayuga County Court, 1999, Corning, J.), which the court could not locate, and People v. Kogut (10 Misc 3d 305, 806 NYS2d 366 [Sup Ct, Nassau County 2005]). There, Justice Ort conducted a 12 day Fye hearing, after which he permitted, as a matter of discretion, the testimony of Dr. Saul Kassin with respect to his studies on the voluntariness of confessions generally and the phenomenon of false confessions. However, Dr. Richard Ofshe, who is the co-author of a treatise with Dr. Leo, was not permitted to testify.

This court believes it is bound by Appellate Division decisions in other Judicial Departments in the absence of contrary authority in the Fourth Department (see People v. Turner, 5 NY3d 476, 806 NYS2d 154 [2005]; Duffy v. Horton Mem. Hosp., 66 NY2d 473, 497 NYS2d 890 [1985]; In re Patrick BB, 284 AD2d 636, 725 NYS2d 731 [3d Dept 2002]; People v. Shakur, 215 AD2d 184, 627 NYS2d 341 [1st Dept 1995]; Mountain View Coach Lines v. Storms, 102 AD2d 6634, 476 NYS2d 918 [2d Dept 1984]). Therefore, the Third Department having spoken [*3]directly to this issue, the motion of the District Attorney must be granted and the proposed testimony precluded.

The court notes that it would reach the same conclusion on the facts of this case. In Kogut, the defendant had been interrogated for over 15 hours, was deprived of food and drink, was not allowed to speak with his girlfriend, may have been under the influence of alcohol, drugs, or both, and may have been misled about his polygraph results. Here, defendant met with Investigator Welling in a non-custodial, public place. There is no showing that the proposed testimony would be at all relevant in this case.

If any order is required, one can be submitted on notice.

Dated: Little Valley, New York

September 7, 2007

_________________________

HON. LARRY M. HIMELEIN