| People v Rodas |
| 2016 NY Slip Op 08630 [145 AD3d 1452] |
| December 23, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Appellant, vRichard A. Rodas, Jr., Respondent. |
Valerie G. Gardner, District Attorney, Penn Yan (David G. Mashewske of counsel),for appellant.
Tiffany M. Sorgen, Canandaigua, for defendant-respondent.
Appeal from an order of the Yates County Court (W. Patrick Falvey, J.), dated April7, 2016. The order, among other things, granted the motion of defendant to suppresscertain statements.
It is hereby ordered that the order so appealed from is unanimously affirmed and theindictment is dismissed.
Memorandum: In this criminal action arising from defendant's alleged conspiracywith his girlfriend to sexually abuse the girlfriend's daughter, the People appeal pursuantto CPL 450.20 (8) from an order granting defendant's motion to suppress statements thathe made, as well as letters that he gave, to a Yates County Department of Social Serviceschild protective caseworker during a series of interviews conducted at the Yates CountyJail, where defendant was in custody on an unrelated charge on which he was representedby counsel. At the outset, we note that the "factual findings and credibilitydeterminations of a hearing court are entitled to great deference on appeal, and will notbe disturbed unless clearly unsupported by the record" (People v Collier, 35 AD3d628, 629 [2006], lv denied 8 NY3d 879 [2007], deniedreconsideration 9 NY3d 841 [2007]; see People v Hogan, 136 AD3d 1399, 1400 [2016], lvdenied 27 NY3d 1070 [2016]). Likewise, "in the event the proof permits the drawingof conflicting inferences, the choice is for the [hearing court] and should be upheldunless unsupported by the evidence" (People v Davis, 221 AD2d 358, 359[1995], lv denied 87 NY2d 920 [1996] [internal quotation marks omitted]).
Here, we conclude that County Court properly determined that the caseworkerobtained the statements and letters in violation of defendant's right to counsel (see generally People v Lopez,16 NY3d 375, 380 [2011]), inasmuch as there was such a degree of investigatorycooperation between the caseworker and a Village of Penn Yan police investigator thatthe caseworker acted as the agent of the police in questioning defendant and obtainingthe letters from him outside the presence of defense counsel (see People v Wilhelm, 34AD3d 40, 46-50 [2006]; People v Greene, 306 AD2d 639, 640-641 [2003],lv denied 100 NY2d 594 [2003]; see generally People v Rodriguez, 135 AD3d 1181,1184-1185 [2016], lv denied 28 NY3d 936 [2016]). In the weeks before thecaseworker's interviews with defendant, she and the investigator communicated at leastfour times and kept each other closely apprised of their respective investigatory findings.Right before the caseworker first interviewed defendant, she called the investigator againto let him know what she was doing and to ask him to accompany her to the jail. Theinvestigator informed the caseworker that he could not do so because defendant wasrepresented by counsel on the unrelated charge and had told the investigator thatdefendant would not speak to him in the absence of counsel. Although both theinvestigator and the caseworker testified at the suppression hearing that the investigatordid not give the caseworker instructions or directions before she interviewed defendant,the caseworker also testified that the investigator specifically asked her not to "focus on"certain letters that might be possessed by defendant at the jail, to avoid defendant'sdestruction of those letters before the investigator could obtain a warrant for theirseizure. Additionally, during the interviews, the caseworker told defendant that she was"working together" with "law enforcement" and would be "sharing" with the police anyinformation that she obtained from him (see Greene, 306 AD2d at 641; seegenerally Wilhelm, 34 AD3d at 47-48).
Moreover, after the caseworker interviewed defendant, she briefed the investigatoron the substance of defendant's statements and turned over copies of the letters that shehad obtained from defendant (see Wilhelm, 34 AD3d at 47-48). In turn, theinvestigator allowed the caseworker to read and make copies of letters that he hadacquired from defendant's girlfriend. The caseworker further shared with the investigatorother information that she had learned during the investigation, including the location ofyet another set of letters. We thus conclude that defendant's right to counsel, the natureand effect of which the caseworker specifically had been apprised before she intervieweddefendant (cf. id. at 49), was circumvented because the caseworker was acting asan agent of the police at the time that she interviewed defendant (see id. at 48-49;Greene, 306 AD2d at 641). In light of our determination, the indictment must bedismissed because " 'the unsuccessful appeal by the People precludes all furtherprosecution of defendant for the charges contained in the accusatoryinstrument' " (People vMoxley, 137 AD3d 1655, 1656-1657 [2016]). Present—Whalen, P.J.,Peradotto, NeMoyer, Curran and Troutman, JJ. [Prior Case History: 52 Misc 3d1203(A), 2016 NY Slip Op 50974(U).]