People v. Tohom, — N.Y.S.2d —, No. 2011-07111, 2013 WL 3455673, at *5-14 (N.Y. App. Div. July 10, 2013).

Defendant was convicted of predatory sexual assault against a child and endangering the welfare of a child—his daughter—and was sentenced to an indeterminate term of imprisonment of 25 years to life.  Defendant appealed his conviction, arguing, inter alia, that     the trial court erred in permitting the child-victim to be accompanied by a comfort dog during her testimony.  Defendant argued that the state law providing guidelines for the fair treatment of child witnesses did not authorize the presence of comfort dogs at a criminal trial, that the trial court’s interpretation of the statute so as to permit such presence improperly invaded the domain of the legislature, and that the dog’s presence violated defendant’s due process right to a fair trial and impaired his right to confront witnesses against him.  Defendant also argued that the trial court erred in failing to make a finding of necessity before allowing the presence of the comfort dog.  The court rejected defendant’s arguments and affirmed his conviction, concluding that as an issue of first impression, New York courts “should permit the presence of a therapeutic ‘comfort dog’ in a trial setting when the court determines that the animal may provide emotional support for a testifying crime victim.”  The court began its analysis by clarifying that there is no state statute that specifically states that comfort dogs are permissible in a trial setting, but that “the Legislature has generally addressed the treatment of crime victims, and it has endeavored to ensure that those who are victimized by criminal acts are treated fairly in the subsequent judicial process.”  The court found that one such law—providing for the fair treatment of child witnesses—applied in this case, and was properly interpreted to permit the use of a comfort dog at trial.  The court explained that because the relevant language in the law was so general “that it can only be interpreted as authorizing a trial judge to utilize his or her discretion in fashioning an appropriate measure to address a testifying child witness’s emotional or psychological stress, based upon the particular needs of that child[,]” the trial court’s exercise of its discretion did not usurp the province of the legislature.  The court further held that the trial court’s decision to permit the victim to testify in the presence of the comfort dog was “a proper exercise of  its inherent power and discretion to control the trial proceedings[,]” as comfort dogs have “been shown to ameliorate the psychological and emotional stress of the testifying child witness” and defendant made no showing that the dog’s presence had any identifiable impact on the proceeding or was otherwise inherently prejudicial or impaired his right to a fair trial.  The court concluded that, to the contrary, the record demonstrated that the dog’s “unobtrusive presence” did not violate defendant’s confrontation right as defendant had wide latitude to question witnesses, including the child-victim, and that the trial court instructed the jury that it was not to draw any inference because of the dog’s presence “and it must be presumed that the jury followed the legal instructions it was given.”  Lastly, with respect to defendant’s argument that the trial court erred in not requiring a showing of necessity, the court explained that this argument was unpreserved as it was raised for the first time on appeal, but that “[i]n any event, this argument is without merit.”  The court pointed out that the relevant state law does not set forth any “necessity” criterion, and that other jurisdiction’s that have addressed this issue have not adopted any such criterion.