People v. Rodas
| Decision Date | 07 April 2016 |
| Docket Number | No. 15–61.,15–61. |
| Citation | 38 N.Y.S.3d 832 (Table) |
| Parties | The PEOPLE of the State of New York v. Richard A. RODAS, Jr., Defendant. |
| Court | New York County Court |
Valerie G. Gardner, Yates County District Attorney, David G. Mashewske, Esq., of Counsel, for The People.
Tiffany M. Sorgen, Esq., for Defendant.
W. PATRICK FALVEY, J.
Defendant, Richard A. Rodas, Jr., was indicted for one count of Sexual Abuse in the First Degree, in violation of Penal Law § 130.65(2), a class D violent felony; one count of Forcible Touching, in violation of Penal Law § 130.52, a class A misdemeanor; three counts of Endangering the Welfare of a Child, in violation of Penal Law § 260.10(1), all class A misdemeanors and one count of Conspiracy in the Sixth Degree, in violation of Penal Law § 105.00, a class B misdemeanor.
Defendant, moved for assorted forms of relief as requested in his Notice of Omnibus Motion dated October 9, 2015.
The Court subsequently ruled on his Omnibus Motions and granted his application for so called Huntley [People v. Huntley, 15 N.Y.2d72 (1965) ], Sandoval [People v. Sandoval, 34 N.Y.2d 371(1974) ], Probable Cause and Mapp [ Mapp v. Ohio, 367 U.S. 643, 81 S.Ct 1684, 6 L. Ed2d 1081 (1968) ] hearings.
The hearings were conducted, in the defendant's presence, over two days, to wit: December 8, 2015 and January 13, 2016. The Sandoval issues were decided on the record on December 8, 2015 with the Assistant District Attorney to submit an order.
At the conclusion of the Huntley, Probable Cause and Mapp hearings, counsel were given an opportunity to file submissions and the case was marked submitted on March 25, 2016.
Based upon all the submissions, arguments of counsel, the hearing and all the proceedings herein the Court decides as follows:
Two witnesses testified, both on behalf of the People. The Court gives full credence to the testimony of those witnesses.
At a time in February of 2015, Leslie McInnis, a CPS worker for the YCDSS, was investigating a child neglect/abuse matter involving the defendant and a possible co-conspirator (hereafter referred to as J). The investigation was based on inadequate guardianship by J of her 15 year old child (hereinafter referred to as A), in that she allowed the defendant who had lived with J to have sex with the child and otherwise act improperly including requesting nude photographs of the child and pulling her pants down.
McInnis made an initial complaint about these allegations to PYPD Investigator Thomas Dunham on or about February 11, 2015. She advised Dunham that the child's mother, J, had been dating the defendant who was currently in the Yates County Jail.
Dunham then spoke with J on February 13, 2015 at her house about the allegations involving the defendant and her daughter. She said that she would come to the PYPD on the following Monday, February 16, 2015, to discuss the matter further. J and Durham talked two different times on the 16th resulting in Dunham preparing two written statements, one at 12:00 noon (Exhibit 15) and the other at 3:10 P.M. (Exhibit 16) which J signed under penalty of perjury. Dunham spoke with J the second time because he felt she hadn't been fully truthful in that she hadn't given him the full story on their first visit. She also told Dunham that she and the defendant had lived together and had threesomes with A. J said that she used her Pantech cell phone to video tape and photograph her daughter and the defendant used a Samsung Tracfone. J also stated that the defendant had written her letters while he had been in jail and she still had some in her possession. J voluntarily gave Dunham the SIM card and defendant's Samsung Tracfone cell phone which was at her home and according to J contained photos and videos of her daughter. J also freely gave Dunham her Pantech cell phone and SIM card in addition to various letters (Exhibits 12, 13 and 14) written to J by the defendant or by J to the defendant.
Prior to March 4th, McInnis told Dunham that she was going to speak with the defendant at the jail on March 4, 2015. She asked Dunham if he wanted to accompany her. He said, No because the defendant already had an attorney on an unrelated matter so he could not speak with him without an attorney. Furthermore, the defendant had told Dunham that he would not speak with him without an attorney.
McInnis also knew that the defendant had invoked his right to counsel but she did not know why he was incarcerated at the time.
Although Dunham and McInnis had spoken approximately four times before her first conversation with the defendant on March 4th and each time after her four jail visits with the defendant, Dunham did not give McInnis any direction or instructions regarding any of her meetings with the defendant at the jail.
On her first visit to the jail on March 4, 2015, McInnis advised the defendant that she was there to talk with him about a CPS report. They spoke alone in an interview room for approximately twenty minutes to a half an hour. The defendant sat in a chair and was not physically restrained. He seemed relaxed when they spoke.
They talked about the allegations of inadequate guardianship as it concerned the children. Defendant said that J's daughter, A, referred to him as dad. McInnis asked the defendant about the allegations of sexual abuse. He said that J was sending pictures of the child. J alleged that Defendant was sending inappropriate pictures of the child but the defendant denied these allegations. As McInnis left the jail, she told the defendant to get ahold of her if he had anything else to add.
On March 5, 2015, a Yates County Corrections Officer (CO) called McInnis advising her that the defendant requested to speak with her. McInnis went to the jail, they talked and the defendant gave McInnis certain letters that J purportedly had written to him, some of which were sent to the defendant while in jail. He told McInnis to keep the letters as long as she wanted. McInnis took the letters but never had any instructions from Investigator Dunham regarding same. She made copies (Exhibit 11) and also gave a copy to Investigator Dunham. Dunham also showed her the letters Dunham had obtained from J. McInnis also gave Dunham copies of her notes of her conversations with the defendant. One time when they spoke, McInnis told Dunham about the letters. He told her not to focus on them because he intended to seek a warrant to obtain them.
After copying the letters McInnis returned the originals to the defendant on or about March 9, 2015 as, in her opinion, they were the defendant's. She did not recall telling the defendant that she had given copies of them to law enforcement. But she told the defendant that law enforcement has to give CPS what they have and CPS can give certain things to the police as well.
McInnis last saw the defendant at the Yates County Jail on March 18, 2015. They spoke for approximately fifteen to twenty minutes. As on prior occasions she never discussed specifics with Dunham prior to speaking with the defendant.
Regarding their conversations, no promises or threats were ever made to the defendant. He appeared calm and not upset. He was not restrained in any manner and he never asked to speak with a lawyer during any of the conversations between him and McInnis.
McInnis never took part in bringing the criminal charges against the defendant or J, although McInnis did eventually testify before the Grand Jury. The defendant's arrest report shows that the defendant was arrested on April 20, 2015 for the charges at bar and the subject indictment was filed on September 9, 2015.
Dunham prepared separate affidavits for search warrants for the defendant's Samsung Tracfone with disk (Exhibit 10) and J's Pantech cell phone and SIM card (Exhibit 2). They were presented to the Penn Yan Village Justice who issued search warrants on March 5, 2015 for defendant's phone (Exhibit 4) and J's phone (Exhibit 3).
Each search warrant affidavit contained both of J's February 16, 2015 written statements (Exhibits 15 and 16) which were affirmed under the penalty of perjury and the PYPD's Call for Service Sheet dated February 11, 2015 noting McInnis' initial report to the PYPD. J was not under arrest at the time but could not be considered a by-stander to the allegations either.
After the warrants were issued Dunham arranged for forensic downloads to be prepared by Investigator John Abram of the Ontario County Sheriff's Department for each cell phone.
The Pantech Tracfone forensic report for J's phone was completed on March 20, 2015 and contains a paper print out of what is on the accompanying CD disk (Exhibit 8). The Samsung cellular forensic phone report for defendant's phone was completed on April 7, 2015 and also contains a paper print out of what is on the accompanying CD disk (Exhibit 9).
Dunham filed separate returns, each dated April 8, 2015, for each search warrant, to...
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