Scott Ziemelis, Pine Bush, for defendant.
Stephen F. Lungen, District Attorney of Sullivan County, Monticello (E. Danielle Jose of counsel), for plaintiff.
Frank J. LaBuda, J.
The defendant, Howard Greene, was indicted by a Sullivan
County Grand Jury on July 11, 2001 and charged with rape in the first degree in violation of Penal Law § 130.35 (2), rape in the second degree in violation of Penal Law § 130.30, sexual abuse in the second degree in violation of Penal Law § 130.60 (2), four counts of incest in violation of Penal Law § 255.25, five counts of endangering the welfare of a child in violation of Penal Law § 260.10 (1), three counts of sodomy in the first degree in violation of Penal Law § 130.50 (1), two counts of sodomy in the second degree in violation of Penal Law § 130.45, sexual abuse in the first degree in violation of Penal Law § 130.65 (1), intimidating a victim in the third degree in violation of Penal Law § 215.15 (1), menacing in the second degree in violation of Penal Law § 120.14 (1), and sodomy in the third degree in violation of Penal Law § 130.40.
Pursuant to the defendant's request for omnibus motion relief, a Huntley hearing was held on August 29, 2001 wherein this court upon review of the testimony of the witnesses called by the People and documentary evidence submitted made the following findings of fact beyond a reasonable doubt.
On February 10, 2001 a " hotline report" was received by the Sullivan County Department of Social Services from the Albany reporting center. On February 10, 2001 New York State Police Investigator Nohawecka was advised by a senior caseworker from the Sullivan County Department of Social Services that the biological daughter of the defendant, Howard Greene, who then was at the Four Winds Rehabilitation Center near Albany, New York, had made allegations regarding sexual abuse and rape by the defendant herein. As a result of that information Investigator Nohawecka interviewed the child victim who is now 16 years old, and interviewed other members of the family regarding the allegations made. The New York State Police investigation, in conjunction with the Sullivan County Family Violence Response Team, resulted in the instant 21-count indictment which charges an ongoing course of rape, sodomy and sexual abuse commencing in or about July 1996 at the defendant's residence in the Hamlet of Smallwood, Town of Bethel, Sullivan County, New York, when the daughter was 11 years old and continuing through the summer of 1999. The allegations included both forcible rape and sodomy as well as statutory sodomy, and forcible and statutory sexual abuse. As a result of the information obtained through his investigation, Investigator Nohawecka on February 14, 2001 arrived at the Greene residence at approximately 2:00 P.M . and met with the
defendant on the front porch of his home.T he investigator then only advised the defendant that he was conducting an investigation and did not advise the defendant of the specifics of the investigation nor the allegations made nor that he was the target of the investigation. The defendant agreed to accompany the investigator to the New York State Police barracks and did so without being arrested, handcuffed or restrained. At approximately 2:25 P.M . the defendant, with the investigator, arrived at the State Police barracks and was brought into the interview room. There, the defendant immediately engaged in a monologue that rambled on for approximately one-half hour without being questioned by the investigator. When the investigator tried to interject, the defendant continued his monologue for approximately another 45 minutes talking about his various encounters with prostitutes in New York City and the fact that many children these days were falsely accusing their parents of sexual crimes. Finally, after one hour and 15 minutes, the defendant stopped suddenly and asked the investigator why he was at the barracks. At that time, the investigator advised the defendant of the allegations and that he was being arrested for sodomy regarding the abuse of his daughter. The defendant was read his Miranda rights, fully acknowledged them and agreed to talk to the investigator. The defendant also consented to a search of his vehicle and a search of his premises by consenting to and signing a written consent form provided by the investigator. A 9 mm German Luger pistol was retrieved from the defendant's premises and is the alleged modus involving the threatening of a witness by force and intimidation. The investigator testified further that the defendant appeared cooperative and was clearly coherent and responsive to any questions that had been asked by the investigator including his Miranda rights.
The People next called Rebecca Skoda from the Sullivan County Department of Social Services. Ms. Skoda has a Master's degree in social services and is part of the Sullivan County Family Violence Response Team. She testified that pursuant to the Social Services Law and her duties and assignments as a caseworker, she was tasked with conducting a personal " face-to-face" interview of the defendant. On March 8, 2001 Ms. Skoda in the performance of her routine duties as a social worker was at the Sullivan County Jail to interview another client and not the defendant. She had earlier in the day, in the jail, seen the defendant's counsel and knew that the defendant Howard Greene was represented by Stephan Schick,
Esq., the Executive Director of the Sullivan County Legal Aid Bureau, Inc. By happenstance, Ms. Skoda saw the defendant in the interview room area of the Sullivan County Jail and decided to interview him at that time.S he advised Mr. Greene that he was the subject of a hotline abuse call and that she knew that he had an attorney. The defendant agreed to speak to Ms. Skoda even though he said he had an attorney. The defendant spoke with Ms. Skoda and made various statements and admissions to her. Ms. Skoda testified and it is conceded that the March 8, 2001 interview of Mr. Greene was not prearranged by anyone in her department, the State Police or District Attorney's office. Ms. Skoda also testified that when she interviewed Mr. Greene at the Sullivan County Jail she was not working in conjunction with the New York State Police or the District Attorney's office, but was interviewing ...