A comfort dog may accompany a testifying crime victim when a judge has determined that the animal will provide needed emotional support, a Brooklyn appellate panel has ruled in a matter of first impression in New York.
An unanimous panel of the Appellate Division, Second Department, on Wednesday refused to vacate Victor Tohom's conviction for predatory sexual assault against a child and endangering the welfare of a child, ruling that his right to a fair trial had not been damaged by the presence of a professionally trained therapy dog named Rose.
Rose and her handler, Sherri Cookinham, in 2011
Quoting from George Eliot's 1857 book "Scenes of Clerical Life," Justice Sandra Sgroi (See Profile) wrote, "[Dogs] are such agreeable friends—they ask no questions—they pass no criticisms," but, the judges asked, do they belong in a courtroom?
People v. Tohom, 338/2010, arose from allegations by a girl, 15 at the time of the June 2011 trial, that Tohom, her father, had abused her over a period of four years, from 2006 to 2010. The girl, identified in the decision as J., had been diagnosed with post-traumatic stress disorder and expressed anxiety about having to testify and relive her ordeal.
Rose was trained to help special-needs children and veterans suffering from PTSD to relieve anxieties. Dutchess County Court Judge Stephen Greller allowed the Golden Retriever to take the stand with J. after her therapist said the dog would help alleviate her apprehension. Whenever Rose sensed that J. was troubled, she would put her head on the girl's lap.
The appellate court quoted courts in other states that had reached the issues raised by the case, but acknowledged that no New York court had considered the use of comfort or therapy dogs at trial. However, Sgroi concluded that Executive Law §642-a, which established guidelines for the "fair treatment of child victims as witnesses," applied.
That law provides, among other things, that presiding judges "should be sensitive to the psychological and emotional stress a child witness may undergo while testifying."
Further, Sgroi noted that there was precedent for interpreting the law in a way that supported the use of Rose. The court noted that the Appellate Division, Third Department, in People v. Gutkaiss, 206 AD2d 628, had upheld a decision to allow a child sex-abuse victim to hold a teddy bear while testifying.
"Of course, the case at bar involves a live animal, as opposed to an inanimate object," Sgroi wrote. "Nevertheless, we perceive no rational reason why, per the broad dictate of Executive Law §642-a (4), a court's exercise of sensitivity should not be extended to allow the use of a comfort dog where it has been shown to ameliorate the psychological and emotional stress of the testifying child witness."
Tohom's lawyers had argued that Rose's presence would "clearly prejudice the jury against" him because the dog's presence would convey to jurors that she was under stress from "telling the truth." But Sgroi noted that the dog did not have the ability to distinguish truth from falsity and communicate such a distinction to the jury. Moreover, Greller instructed the jury to disregard Rose's presence in weighing Tohom's guilt or innocence.
"We are not unmindful that Rose may have engendered some sympathy for J. in the minds of the jurors," Sgroi wrote. "However, there is no proof that such sympathy was significantly greater than the normal human response to a child's testimony about his or her sexual abuse at the hands of an adult. Moreover, the County Court gave the jury specific instructions that it must not permit sympathy to enter its considerations, especially with respect to 'an outside factor such as a companion dog permitted to be present in the courtroom.' A jury is presumed to follow the legal instruction provided by the trial court… Nor did defense counsel suggest any further instruction regarding Rose's presence."
Finally, Sgroi said Rose's presence did not undermine Tohom's confrontation clause rights by physically interfering with his lawyer's cross examination of J.
The case was argued on Dec. 7.
Steven Levine and Thomas N.N. Angell of the Dutchess County Public Defender's Office, represented Tohom. He could not be reached for comment.
Dutchess County assistant district attorney Kirsten Rappleyea appeared for the prosecution. She could not be reached for comment.
Tohom, who is 39, was sentenced to 25 years to life in prison. He is serving his sentence at the Clinton Correctional Facility in Dannemora and will be eligible for parole in 2035.
Rose died last fall at the age of 13.
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