DECISION OF THE COURT The defendant is charged with endangering the welfare of a child in violation of §260.10 (1) of the Penal Law. On May 20, 2019, a hearing was held to determine if evidence obtained was the result of unlawful police conduct and whether or not the defendant’s statements made to law enforcement pursuant to CPL §710.30 were made voluntarily. SUMMARY OF TESTIMONY The attorney for the people called Detective Edwin D’Alessandro as their first witness. Detective D’Alessandro testified that he is employed by the City of Rome Police Department, has been a police officer for the past twenty-two years and is currently assigned to the Oneida County Child Advocacy Center. Detective D’Alessandro further testified that on January 30, 2019, he was assigned to investigate a matter involving Michael Mayhew (herein referred to as the ‘defendant’) based on an allegation that defendant had taken photographs of an individual believed to have been a juvenile. Detective D’Alessandro testified that on January 30th, that he along with Special Agent Webber from the Federal Bureau of Investigation went to question the defendant at R.L. where defendant is employed. Detective D’Alessandro testified that upon arrival, a request was made to security at the facility to speak with the defendant outside. Detective D’Alessandro stated that upon introduction to the defendant, he requested possession of the defendant’s telephone as it was evidence and the defendant indicated that he would not have a conversation nor provide the telephone as he was represented by counsel. Detective D’Alessandro further testified that the defendant proceeded to contact George Aney, Esq, his attorney, via telephone, and that he also had a conversation with the attorney. The Detective also stated that upon conclusion of the conversation with Mr. Aney, that consent was given for his agency to take possession of the defendant’s cellular telephone and that the defendant provided the pass code for access. Investigator D’Alessandro testified that upon taking possession of the cellular telephone that he made contact with Sergeant Bolton and he was directed to take the defendant into custody. Investigator D’Alessandro stated that the defendant was told he was under arrest, read his Miranda warnings by Special Agent Webber and transported to the Rome City Police Department. Investigator D’Alessandro further stated that upon the defendant invoking his right to counsel, he did not question him about the investigation. On cross-examination, Detective D’Alessandro testified that he had no intention of arresting the defendant prior to arrival at his place of employment. The Detective further stated that the conversation which took place between himself, the defendant and Special Agent Webber was in a “private location”. Detective D’Alessandro further testified that he was investigating charges of child pornography as a result of interviews with the child along with the child’s parents, involving allegations the defendant took inappropriate pictures of a child. Detective D’Alessandro testified that he did not obtain a written consent from the defendant to secure his cellular phone; However, the defendant turned over his phone upon conclusion of his conversation with counsel. Detective D’Alessandro further stated that after the defendant provided his telephone that he was told he could return to his employment to attend a meeting and it was not until speaking with Sergeant Bolton that a directive was given to place the defendant under arrest. The detective testified that the underlying basis for arresting the defendant was the result of an allegation of endangering the welfare of a child. Detective D’Alessandro testified that upon notifying the defendant that he would be transported to the Rome Police Department, he was also advised that he was under arrest. The detective stated that the defendant’s phone was secured prior to his arrest. On re-direct examination, Detective D’Alessandro testified that the defendant spoke with his attorney about turning over his telephone and subsequently defendant did turn over the devise. On re-cross examination, the detective stated the conversation between the defendant and his attorney was not on ‘speaker phone’; However, he could hear that the premises of their conversation was relative to turning over his telephone to the police agency. Detective D’Alessandro further stated that as a result of his conversation with defendant’s counsel, permission was granted to secure the defendant’s telephone. The Court will note that the witness indicated the defendant was holding his phone a “couple inches” from his ear while conversing with his counsel regarding the police agency securing the telephone. Heather Webber testified that she is a special agent employed by the Federal Bureau of Investigations and investigates Federal violations under Title 18 of the United States Code including matters that relate to child exploitation and counter intelligence. Special Agent Webber further testified that on January 30, 2019, she assisted the Oneida County Child Advocacy Center in an investigation to determine whether the defendant possessed classified documents at his residence. Special Agent Webber stated that she accompanied Detective D’Alessandro to the defendant’s place of employment. Special Agent Webber testified that coordination was conducted with security officials at R.L. prior to speaking with the defendant. The witness further stated that prior to the defendant’s cell phone being secured, the following took place: Q. And did there come a time where you became privy to an attempt to secure Mr. Mayhew’s phone? A. Yes there was. Q. Can you describe what you observed with respect to that? A. To events leading up to securing the cell phone or the…? Q. Yes, yes. A. Okay. Ed and I went to R.L. and we, we wanted to talk to him about several different things that were going on at the time. We made coordination with security officials at R. L. to discuss these events and the allegations in such a way that it was non alerting to his employer and to himself, and try to figure out what was going on. Mr. Mayhew came out of the building and we met him in the parking lot. And once Ed identified who we were he told us that he had an attorney and wished to speak to his attorney. Agent Webber further testified about securing the defendant’s cell phone and stated: A. I recall Mr. Mayhew called his attorney and he was advised at that point that he needed to provide his cell phone to law enforcement. And he talked to his lawyer about that. The lawyer said to go ahead and do that at which point he provided us his cell phone and we secured it. Special Agent Webber also stated the defendant was placed under arrest several minutes after his cell phone was secured and he was transported to the Rome City Police Department. Special Agent Webber testified that she read the defendant his Miranda Warnings while he was being transported to the police department and thereafter, she made no inquiry with respect to the investigation. On cross-examination, Special Agent Webber testified that she could hear portions of the conversation between the defendant and his attorney and he was advised to provide “whatever they need”. Special Agent Webber also stated that the defendant was not under arrest at the time he turned over his cellular telephone and that she “believes” the defendant was on the phone with his attorney upon Detective D’Alessandro indicating the cell phone contained evidence of a crime. Sergeant Melissa Bolton testified to being employed by the Oneida County Sheriff’s Office, assigned to the Child Advocacy Center and having been a police officer for fourteen and a half years. Sergeant Bolton also testified to being involved with the investigation of the defendant which was initiated by a Child Protective Services report being made to the State Central Registry on January 28, 2019. Sergeant Bolton testified that the Child Protective Service report alleged the defendant bathed a child named P.M. on more than one occasion and made comments to the child “in regards to the size of a male’s penis”. Sergeant Bolton also testified in furtherance of the investigation against the defendant that the child was interviewed at the Child Advocacy Center on the following day along with child’s mother and father. Sergeant Bolton further testified that R.M. and P.J., the child’s parents, provided two recordings of conversations between them and the defendant prior to the child protective or police report being filed. Sergeant Bolton testified that the recordings corroborated statements obtained during the course of the investigation as the defendant made admissions to taking pictures of the subject child while in the bathtub. Sergeant Bolton further testified that on January 30, 2019, she, along with an investigator from the New York State Police, interviewed T.M. at the Mayhew residence. Sergeant Bolton testified that she spoke with Detective D’Alessandro on January 30th, who advised her that the defendant requested to speak to an attorney and thereafter, she directed the defendant be taken into custody on one count of endangering the welfare of a child. Sergeant Bolton stated that the premises for the defendant to be taken into custody was based upon pictures taken of the child subject to the investigation and disclosures the child made. Sergeant Bolton further testified that she obtained the defendant’s cell phone and pass code from Detective D’Alessandro and after unlocking the phone, placed it into airplane mode and shut the cellular telephone off. Sergeant Bolton also stated that a search warrant was obtained for access to the telephone. On cross-examination, Sergeant Bolton testified to ordering the arrest of the defendant, was not aware of when the defendant’s cell phone was secured as having not been present at that time and that Investigator Paravati was the author of the search warrant. Sergeant Bolton further stated that upon a search warrant for the defendant’s cell phone being obtained, the photograph of the child subject to the investigation was extracted. Sergeant Bolton also testified that R.M. had taken a photo of the child in a bathtub and was not arrested due to the underlying context and circumstances. Sergeant Bolton also stated that the defendant’s arrest was made without seeing the photo extracted from the defendant’s cell phone due to the a totality of the investigation. On re-direct examination, Sergeant Bolton stated that the “totality of the circumstances” pertaining to the investigation was based upon the lack of necessity of the child having to bathe at the defendant’s residence. Sergeant Bolton also testified that the picture of the child was taken by the defendant between November of 2018 and December of 2018 when the child spent time at the defendant’s residence. On re-cross examination, Sergeant Bolton testified that the defendant’s arrest was not only based upon the defendant bathing the child but also due to the child being uncomfortable with the circumstances. Sergeant Bolton further testified that the child did not make any disclosures or allegations sexual in nature by the defendant. The Court will note that further questioning of the witness was made by defense counsel pertaining to whether or not the defendant’s behavior made the child uncomfortable; However, such testimony is outside the scope of the determination to be made as a result of this hearing. During the course of testimony, the Court received into evidence People’s Exhibit #1, without objection from defense counsel, which purported to be an audio recording of the interviews conducted by Detective D’Alessandro of the defendant. The Court will note that upon review of the compact disk, it was found to contain no recordings at which point the People were advised, in writing and on notice to defendant’s counsel, of such deficiency. A supplemental disk was submitted by the People containing a ‘green dot’ which was reviewed by defense counsel as set forth in his correspondence dated July 19, 2019, which further stipulated to entry of the recording into evidence. Upon conclusion of testimony, the Court reserved decision and allowed defense counsel to submit a closing brief with a transcript of the proceeding by June 26th along with any motion to suppress evidence obtained based on any alleged misstatements of fact in the search warrant application. The Court received a memorandum of law by the attorney for the defendant on June 18, 2019 and an affirmation and memorandum of law by the people on July 3, 2019 which were considered upon making the decision herein. STANDARD OF LAW- VOLUNTARINESS OF A CONSENT In a Court’s determination as to whether consent to a search is voluntary in nature and is the product of an individuals free choice, various consideration must be accounted for including whether the accused was in custody at the time consent was given, was advised or knew of his or her right to refuse to consent, whether any threats or coercive techniques were utilized by the police agency, whether the individual had prior involvement with law enforcement and if the individual, prior to having provided consent, exhibited evasive or uncooperative behavior. (People v. Caldwell, 221 AD2d 972 [4th Dept 1995]). While an examination must be undertaken into various factors, a final finding shall also consider that “voluntariness is incompatible with official coercion, actual or implicit, overt or subtle.” (People v. Packer, 49 AD3d 184 [1st Dept 2008]) Furthermore, it has long been held that “where the People rely on consent to justify an otherwise unlawful police intrusion, they bear the ‘heavy burden’ of establishing that such consent was freely and voluntarily given.” (People v. London, 124 AD2d 254 [3rd Dept 1986]; (People v. Dobson, 285 AD2d 737 [3rd Dept 2001]) Upon making a final determination as to whether consent to search is voluntary an examination of the “totality of circumstances” must be made. (Schneckloth v. Bustamonte, 412 US 218 [1973]; People v. McCray, 96 AD3d 1480 [4th Dept 2012]) FINDINGS AND CONCLUSIONS On January 30, 2019, Special Agent Heather Webber and Detective Edwin D’Alessandro approached the defendant at his place of employment to make inquiry as to allegations of endangerment of the welfare of a child. Detective D’Alessandro credibly testified that upon his introduction and request for possession of the defendant’s cellular phone, the defendant indicated he would not provide the electronic devise or make further comments as he was represented by counsel. The defendant proceeded to communicate with his attorney via telephone and the testimony of Detective D’Alessandro demonstrated that the substance of the conversation between them was related to granting permission to the police agency to secure the defendant’s cellular telephone. While the defendant argues that no testimony exists that the defendant was specifically advised of his right to refuse consent, it has been held that such failure does not preclude a finding that consent was voluntary. (People v. Caldwell, 221 AD2d 972 [4th Dept 1995]) However, upon analysis of the totality of the circumstances, the Court has further considered the testimony of Special Agent Webber who stated “I recall Mr. Mayhew called his attorney and he was advised at that point that he needed to provide his cell phone to law enforcement” and further testified that “The lawyer said to go ahead and do that at which point he provided us his cell phone and we secured it.” The Court finds that the defendant’s consultation with counsel prior to providing consent provides additional proof that such consent was voluntary in nature. As to whether or not any threats or coercive techniques were employed by the police agency prior to obtaining consent the Court will note the defendant has not specifically identified any particular behavior constituting such actions. The Court finds that the police agency representatives conducted themselves in a professional manner as Detective D’Alessandro testified to making the defendant “comfortable” and arrangements were made to speak with the defendant outside his place of employment. Specifically, Detective D’Alessandro stated that “we didn’t really didn’t want to make a scene for him or embarrass him so we spoke with him outside his work place” Furthermore, the defendant was permitted to speak to his attorney upon request, which has not been not been disputed by the defendant, and there is no evidence that the law enforcement representatives made attempts to prevent such communication from occurring. Although not specifically disputed by the defendant, the Court finds the defendant’s consent was made prior to being placed under arrest and into custody. (People v. Nichols, 113 AD3d 1122 [2014]) The Court will note that Special Agent Webber testified that the defendant was placed under arrest “several minutes” after speaking with his attorney and subsequently providing his cellular phone to be secured. Although no testimony exists as to the defendant’s prior involvement with law enforcement, the defendant did not exhibit any uncooperative or evasive behavior prior to or upon consenting to provide his cellular phone to law enforcement. Lastly, upon review of the audio recording, the Court finds that the defendant was not coerced by either the detective or special agent upon providing consent, was permitted to contact counsel upon invoking his right to counsel and the defendant stated, upon conclusion of his conversation with counsel, “I will give them the phone” and proceeded to provide the phone to the Detective D’Alessandro. Defendant also voluntarily provided the detective with his pass code for the phone. The Court also finds that the testimony of Detective D’Alessandro and Sergeant Bolton establishes that there was a founded suspicion of criminality and that probable cause existed to believe that the defendant’s cellular phone contained evidence of a crime, specifically pictures of the minor child subject to the investigation. (People v. Dunbar, 5 NY3d 834 [2005]). Furthermore, based upon a totality of the circumstances, the Court finds that the people have established and met the necessary burden required and demonstrated that the defendant’s consent to the seizure of his cellular phone was freely and voluntarily given. (People v. Fioretti, 155 AD3d 1662 [4th Dept. 2017]) Therefore, the defendants motion to suppress evidence seized is hereby denied. VOLUNTARY STATEMENT PURSUANT TO CPL §710.30 Pursuant to the Court’s prior decision a hearing was also conducted to determine whether the statements included in the CPL §710.30 notices were voluntarily made by the defendant. The Court will note that two notices were filed indicating the People’s intention of offering statements made by the defendant at trial. The initial notice referenced statements which were made at approximately 13:07 hours on January 30, 2019 by the defendant at the A.F. R. L. along with subsequent statements made in a police vehicle shortly thereafter (People Exhibit #1). The additional notice pertained to statements made at approximately 13:32 hours by the defendant at the Rome City Police Department and made part of an audio and video recording as referenced as “CD #3″ in the notice. It has long been held that the burden is upon the People to demonstrate that the defendant’s statements “were not the products of coercion, either physical or psychological, or in other words, that they were given as a result of a free and unconstrained choice” (People v. Thomas, 22 NY3d 629 [2014], quoting Culombe v. Connecticut, 367 US 568 [1961]) Furthermore, the Court must also take into consideration the totality of circumstances upon determining if a defendant’s statement was voluntary or not. (People v. Anderson, 42 NY2d 35 [1977]) The Court will note that upon review of People’s Exhibit #1, the defendant’s comments made to law enforcement prior to his arrest were voluntary in nature and those made thereafter and prior to Miranda warnings being given were not substantive or related to the underlying criminal allegations. Thereby, the Court does not find it necessary to suppress the statements set forth in the §710.30 notice. However, the additional §710.30 notice pertaining to statements made by the defendant at the Rome Police Department was not addressed by the People at the hearing nor was there any request to have “CD#3″ offered into evidence for the Court’s consideration. As such, the statements referred to in such notice along with statements contained on the compact disk are hereby suppressed. FRANKS / ALFINITO HEARING On June 18, 2019, the Court received a “Supplemental Notice of Motion” seeking an order suppressing all evidence obtained as the result of the search warrant executed on February 6, 2019 due to the underlying application allegedly containing material misstatements of fact in violation of Franks/Alfinito, or in the alternative a hearing on the issue. On July 3, 2019, the People submitted an affirmation & memorandum of law in opposition contending that the search warrant was properly issued and that the police acted lawfully in all respects. The defendant specifically maintains that the search warrant application of Investigator Christopher J. Paravati contains “misrepresentations of material fact in violation of Franks/Alfinito” as the documents states the defendant’s telephone was seized “pursuant to the lawful arrest”. The defendant further argues that this issue is material as law enforcement must demonstrate that property which they seek to search was properly seized. In order to support the issuance of a warrant, there must be a basis for a determination to be made that probable cause exists. Furthermore, upon an affidavit being submitted on a warrant application which contains false statements that were made knowingly and intentionally or with reckless disregard for the truth, if those statements were necessary to a finding of probable cause, the warrant shall be deemed invalid. Furthermore, the defendant is not entitled to a Franks/Alfinito hearing when there has not been a “substantial preliminary showing that a false statement knowing and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit” (Franks v. Delaware, 438 U.S. 154 [1978]; People v. Darbasie, 128 AD3d 489 [1st Dept 2015]) The Court finds that the defendant has not met the requisite preliminary showing that the statement of Investigator Christopher Paravati was made knowingly or with reckless disregard for the truth. While the Court recognizes that Investigator Paravati’s statement on the warrant application that the defendant’s cellular phone “was taken from Michael J. Mayhew at the time of his arrest by this agency” is not accurate, there is no indication that such representation was made knowingly or there was reckless misrepresentation. (People v. Barnes, 139 AD3d 1371 [4th Dept 2016]) Thus, the defendant has failed to make the substantial preliminary showing warranting a Franks / Alfinito hearing. (People v. Binion, 100 AD3d 1514 [4th Dept 2012]) The Court will also note that upon review of the warrant application, sufficient evidence exists demonstrating reasonable cause despite the facts indicating that the cellular phone was not actually obtained at the time of the defendant’s arrest. (People v. Navarro, 158 AD3d 1242 [4th Dept 2018]) Furthermore, the Court determines the hearing requested by the defendant is not necessary as a search warrant application setting forth that the cellular phone was obtained through the means of valid consent by the defendant or other exceptions would in any event allow access to the cellular devise to be granted. In light of the Court’s prior determination made herein that the defendant’s cellular telephone was properly obtained through means of a voluntary consent, the mere indication that such evidence was obtained upon the defendant’s arrest does not alter the appropriateness of the evidence seized. Therefore, the defendant’s motion seeking to suppress evidence obtained as a result of the search warrant executed on February 6, 2019 or in the alternative a hearing on this issue, is hereby denied based upon the findings contained herein. This constitutes the Decision and the Order of the Court.
