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THE PEOPLE WERE ALLOWED TO PRESENT EXPERT TESTIMONY ON CHILD PSYCHOLOGY AND CHILD ABUSE; DEFENDANT WAS DEPRIVED OF HIS RIGHT TO PRESENT A DEFENSE WHEN THE REQUEST TO PRESENT A REBUTTAL WITNESS WAS DENIED (SECOND DEPT). ​

The Second Department, reversing defendant’s conviction and ordering a new trial, determined defendant should have been allowed to present a witness to rebut the People’s expert testimony on child psychology and child abuse. Failure to allow the rebuttal witness deprived defendant of his right to a fair trial:

… Supreme Court did not err in permitting the People to call an expert witness in the field of child psychology and child sex abuse, notwithstanding any alleged delay in the People’s disclosure of the contents of the witness’s testimony, as the defendant failed to establish that he was prejudiced by the alleged delay … .

… Supreme Court improperly precluded the defendant from calling a rebuttal witness. The right to present a defense is a fundamental element of due process of law … , and, in the instant case, calling a rebuttal expert to testify was central to the defense case. … [T]here is no evidence that the People were prejudiced by the timing of the notice or that the delay was willfully motivated, inasmuch as the content of the People’s expert testimony was disclosed approximately one week prior.  People v Neustadt, 2023 NY Slip Op 05519, Second Dept 11-1-23

Practice Point: Here the denial of defendant’s request to present testimony rebutting the People’s expert denied defendant his right to present a defense (due process).

 

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THE DETECTIVE’S TESTIMONY, WITHOUT EVIDENCE FROM THE CONFIDENTIAL INFORMANT... SUPREME COURT SHOULD NOT HAVE BASED AN UPWARD DEPARTURE IN THIS SORA RISK-ASSESSMENT...