The opinion of the court was delivered by: Charles J. Siragusa
This matter is before the Court on the Defendant's motion to suppress statements made by him to law enforcement on March 29, 2007 and August 24, 2007. In regard to the defendant's application, an evidentiary hearing was held on February 8 and February 14, 2008, at which three witnesses, Investigator Kevin Garvey ("Garvey") of the Monroe County Sheriff's Department, Special Agent Brian Korzak ("Korzak") of Immigrations Customs Enforcement, and the defendant, Scott Cook, testified. Additionally, certain exhibits were received into evidence. The Court has fully considered both the testimony and exhibits. For the reasons discussed below, the defendant's application to suppress is denied in its entirety.
Garvey has been employed with the Monroe County Sheriff's Department for more than twenty-one years. Since 1990 he has been assigned to the Criminal Investigation Section, and has held the rank of investigator since 1995. On March 29, 2007, pursuant to his duties with the Monroe County's Sheriff's Department, Garvey went to 247 Lycoming Road located in Henrietta, New York to execute a search warrant at that address and to speak to the defendant, Scott Cook, regarding allegations of sexual abuse. The search warrant, warrant application, and two supporting depositions, which were attached to the application, one from an individual named Ashley*fn2 and the other from an individual named Jennifer,*fn3 were received into evidence as Exhibits # 4, # 5, # 6, and # 7 respectively. Garvey had taken the sworn statement, received into evidence as Exhibit # 7, from Jennifer on March 23, 2007, and he had taken the sworn statement, received into evidence as Exhibit # 6, from Ashley on March 26, 2007. Ashley, as indicated in Exhibit # 5, the warrant application at ¶ 8A, was born on February 16, 1989, and as indicated on Exhibit # 6, the defendant's date of birth is September 30, 1965. In her sworn statement Ashley indicates the following:
When I was less than a year old, my mother married Scott M. Cook and he began raising me as his daughter. My mom and Scott split up around 1992 and Scott moved out of our house. I spent time with both my mother and Scott my whole life while I was growing up. Around March of 2004, my mother and I weren't getting along very well so I moved in full time with Scott. At that time, Scott was living on Robert Quigley Dr. in Scottsville and I had just turned 15 years old. After I moved in, Scott started rubbing my legs in ways that made me feel very uncomfortable. He also had me take off my shirt so he could give me back massages and he frequently walked in on me while I was taking a shower. I told him several times to stop and to leave me alone but he would just ignore me and keep on doing it. I told my mother and she talked with Scott several times about this. After she talked with him, Scott would stop doing that for about a week and then he would start all over again.
Around December of 2004, we moved out of the apartment in Scottsville and we moved in with Scott's father, Walter Cook, at his house at 247 Lycoming Road in Henrietta. While we lived there, Scott started sneaking into my bedroom at night while I was sleeping and he started touching me over my clothing. He progressively got worse and he started touching me underneath my clothes and my underwear. He would touch my vagina and rub my breasts and he would masturbate himself while he was doing this. He would also put his fingers inside of my vagina on several occasions. Scott would come into my room almost every night and do these things. When he came into my room, I always pretended that I was sleeping because I was scared. I was afraid because in the past when I got in trouble, Scott would spank me and sometimes hit me with a belt. I was afraid that if I told him to leave me alone, he would get angry and hit me.
Also, while I was living there, Scott started to give me and my friends' alcohol and we would get very drunk. Scott gave us Jack Daniels, Goldschlager, tequila, whiskey, vodka, Yagermeister and other types of alcohol. He always did this in his basement bedroom at 247 Lycoming Rd. after my grandfather went to sleep. I can recall many times during that time that my friends and I would get very drunk and my father would take naked photographs of us with his digital camera. He took pictures of us with our shirts off as well as with our pants and underwear off. I saw later on that he had loaded these pictures onto his computer that he had in his room. His computer is a Dell and is located in his bedroom.
In regard to the sworn statement of Ashley, the Court takes judicial notice*fn4 of the following sections of the New York State Penal Law.
§ 130.55 Sexual abuse in the third degree
A person is guilty of sexual abuse in the third degree when he or she subjects another person to sexual contact without the latter's consent; except that in any prosecution under this section, it is an affirmative defense that (a) such other person's lack of consent was due solely to incapacity to consent by reason of being less than seventeen years old, and (b) such other person was more than fourteen years old, and (c) the defendant was less than five years older than such other person. Sexual abuse in the third degree is a class B misdemeanor.
130.00 Sex offenses; definitions of terms
The following definitions are applicable to this article:
3. "Sexual contact" means any touching of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying sexual desire of either party. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing. § 130.05 Sex offenses; lack of consent
1. Whether or not specifically stated, it is an element of every offense defined in this article that the sexual act was committed without consent of the victim.
2. Lack of consent results from: (c) Where the offense charged is sexual abuse or forcible touching, any circumstances, in addition to forcible compulsion or incapacity to consent, in which the victim does not expressly or impliedly acquiesce in the actor's conduct; or
3. A person is deemed incapable of consent when he or she is:
(a) less than seventeen years old; or
(d) physically helpless . . . ; § 260.20 Unlawfully dealing with a child in the first degree A person is guilty of unlawfully dealing with a child in the first degree when:
2. He gives or sells or causes to be given or sold any alcoholic beverage, as defined by section three of the alcoholic beverage control law, to a person less than twenty-one years old; except that this subdivision does not apply to the parent or guardian of such a person or to a person who gives or causes to be given any such alcoholic beverage to a person under the age of twenty-one years, who is a student in a curriculum licensed or registered by the state education department, where the tasting or imbibing of alcoholic beverages is required in courses that are part of the required curriculum, provided such alcoholic beverages are given only for instructional purposes during classes conducted pursuant to such curriculum.
Unlawfully dealing with a child in the first degree is a class A misdemeanor Garvey arrived at 247 Lycoming Road at about 5:25 p.m. on March 29, 2007 and was accompanied by other members of the Monroe County Sheriff's Department, specifically, Investigator Ponticello ("Ponticello"), Sergeant Goodman, and Deputies Davis and Sheer. Garvey was dressed in plain clothes. He was wearing a suit, tie, and overcoat, and although he was armed, his firearm was concealed. Upon arriving, Garvey and Ponticello went up on the front porch and knocked on the door and were greeted by a man who said he was Scott Cook's father and who went and got the defendant. The defendant came onto the front porch, at which time Garvey introduced himself, displaying to the defendant his departmental badge and identification, and told the defendant that he was investigating allegations made by Ashley. Garvey explained to the defendant that he had her side of the story and now wanted to get his side of the story regarding what had happened. Garvey asked the defendant if he would voluntarily accompany him to the police station to talk about the matter. Garvey also told the defendant that no matter what was discussed that day that he would bring the defendant back home and drop him off at his residence when they were done. Garvey also advised the defendant that they had a search warrant for his residence at 247 Lycoming Road, however he did not actually show him the warrant. The defendant responded that he would accompany Garvey to discuss the allegations, but asked if he could first change his clothes. The defendant was allowed to do so, although Garvey, Ponticello, and Sheer followed the defendant to his bedroom in the basement, and Garvey checked the defendant's clothing before he put it on. Then Garvey and the defendant got into Garvey's vehicle and traveled about four miles to the Zone B substation located on Summit Drive in Henrietta. The trip took about eight minutes, and they arrived about 5:55 p.m. The defendant sat in the front passenger seat, and he was not handcuffed or restrained in any way. Upon arriving at Zone B, Garvey placed the defendant in an interview room, which was about 10 feet by 10 feet and had a couple of chairs, a table, and a typewriter. Garvey told the defendant to have a seat and he would get back to him shortly. At approximately 6:05 p.m. Garvey returned to the interview room, at which time he advised the defendant of his Miranda warnings using a departmental form, a copy of which was introduced into evidence as Exhibit # 1. Before reading the defendant the five warnings exactly as they appear on Exhibit # 1, Garvey obtained from the defendant certain information, which he recorded at the top of the form. In that regard, the defendant indicated to Garvey that he lived at 247 Lycoming Road, that his date of birth was September 30, 1965, that he had completed eleventh grade but then obtained his General Equivalency Diploma ("G.E.D.") from East High School, and that he could read and write. After obtaining this information, Garvey read the defendant verbatim the five warnings on Exhibit # 1. Specifically, Garvey told the defendant:
You have the right to remain silent.
Anything you say can and will be used against you in a court of law.
You have the right to talk to a lawyer and have him present while you are being questioned.
If you can not afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish.
You can decide at any time to exercise these rights and not answer any questions or make any statements.
After reading the five warnings exactly as they appear on Exhibit #1, Garvey then asked the defendant the two waiver questions printed on the form. First, Garvey asked the defendant, "Do you understand each of these rights that I have explained to you?", to which the defendant responded, "Yes." Next, Garvey asked the defendant, "Having these rights in mind, do you wish to talk to us now?", to which the defendant again responded, "Yes." Garvey recorded the defendant's responses to the two waiver questions in the spaces provided on Exhibit # 1. Garvey then proceeded to interview the defendant regarding the allegations made by Ashley. The interview was conducted by question and answer. At about 8:20 p.m., Garvey asked the defendant if he would like to provide a written statement about what they discussed. The defendant responded that he would like to do so. Garvey began typing a statement on the typewriter that was in the interview room, going back over his conversation with the defendant and asking clarifying questions from time to time. The three page written statement was received into evidence as Exhibit # 2. After he finished typing the statement, Garvey handed it to the defendant, asked him to read out loud the typewritten portion below the pre-printed Miranda warnings, and also asked him if he would like to make any changes or add anything. The defendant then read the statement out loud, and he indicated to Garvey that he did not want to make any changes or additions. Garvey then asked the defendant to initial the beginning and end of each of the pages, as well as any typographical errors, and the defendant did so Garvey next asked the defendant to sign each of the three pages of the statement and put the time he was signing next to his signatures. The defendant did so, placing the time he signed, 9:30 p.m., next to each signature, and Garvey witnessed the defendant's signature on each page. At no time while Garvey was with the defendant on March 29, 2007, did Garvey ever make the defendant any promises to get him to speak, nor did he ever threaten the defendant in any way to get him to talk. At no time did the defendant ever ...