United States District Court, E.D. New York
MEMORANDUM & ORDER
K. BRODIE United States District Judge.
Artemio Castellanos filed the above-captioned petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 on
November 3, 2010, alleging that he is being held in state
custody in violation of his federal constitutional rights.
(Pet., Docket Entry No. 1.) Petitioner's claims arise
from a judgment of conviction following a jury trial in the
Supreme Court of New York, Nassau County, (the “Trial
Court”) for committing a criminal sexual act in the
first degree and for sexual abuse in the first degree.
(Id. at 1.) The Trial Court sentenced Petitioner to
concurrent terms of imprisonment of twenty-five years on the
criminal sexual act count and seven years on the sexual abuse
count. (Id.) Petitioner appealed his conviction to
the New York Supreme Court Appellate Division, Second
Department (the “Appellate Division”), which
affirmed the conviction. People v. Castellanos, 884
N.Y.S.2d 126 (App. Div. 2009). Petitioner sought leave to
appeal with the New York Court Appeals, which leave was
denied. People v. Castellanos, 13 N.Y.3d 858 (2009).
10, 2013, Petitioner filed a motion for leave to amend and to
stay the petition while he filed a motion to vacate his
conviction pursuant to New York Criminal Procedure Law
section 440.10 with the Supreme Court of New York, Nassau
County (the “440 Court”). (Pet'r Mot. to
Amend and Stay Pet., Docket Entry No. 15.) By Memorandum and
Order dated July 16, 2013, the Court granted the
motion. Castellanos v. Kirkpatrick, No.
10-CV-5075, 2013 WL 3777126, at *1-4 (E.D.N.Y. July 16,
2013). On June 18, 2013, Petitioner filed a motion to vacate
his conviction under section 440.10 (the “440
Motion”) with the 440 Court. (Supplemental Record
(“SR”) 1-49, Docket Entry No. 26-1.) By Decision
and Order dated December 4, 2013, the 440 Court denied the
440 Motion. (SR 776-79.) On April 3, 2014, Petitioner filed
an amended petition, adding the claim he raised in the 440
motion. (Am. Pet., Docket Entry No. 20.) By Memorandum and
Order dated November 18, 2015 (the “November 2015
Order”), the Court denied the petition in part and
stayed decision in part, pending in camera review of
the arresting officer's personnel file. Castellanos
v. Kirkpatrick, No. 10-CV-5075, 2015 WL 7312908, at
*1-10 (E.D.N.Y. Nov. 18, 2015). For the reasons discussed
below, the Court grants Petitioner habeas corpus relief on
the remaining claim in the amended petition.
of 2005, Petitioner lived in Freeport, New York in the home
of Osvaldo Lopez with Lopez's wife, Anna Lillian Rivas
DeLopez, and the Lopez couple's two sons, C.L and
N.L.(T. 370:1, 902:23-904:14.) C.L. was five
years old and N.L. was six years old. (T. 381:12-14,
903:20-904:2.) At the time, Petitioner's girlfriend, Flor
Sosa, lived in the Lopez family's home, as did
DeLopez's brother, Minor Rivas, and two family friends,
Elias and Dimas Ramirez. (T. 378:10-25, 380:7-20,
437:24-438:10, 906:3-10.) On the second floor of the home,
Petitioner and Sosa shared a room, Elias had his own room,
and Dimas slept on a mattress in the common area. (T.
376:6-380:20, 437:24-438:10.) On the first floor of the home,
Rivas used a section of the living area as a bedroom and
Lopez, DeLopez and the children slept in the bedroom. (T.
evening of June 30, 2005, the members of the Lopez household
were having dinner and Rivas and C.L. went to the living room
to play. (T. 913:4-914:1.) While they were playing, Rivas
observed that C.L.'s penis became erect and alerted
DeLopez. (T. 913:24-914:2.) DeLopez asked C.L. why his penis
was erect, but C.L. did not respond. (T. 914:18-915:3.) N.L.
expressed that he knew why, explaining that C.L. had told him
that Petitioner had done something to C.L. (T. 387:14-388:24,
915:8-23.) DeLopez then took C.L. into her bedroom and asked
him to tell her what he had told to N.L. (T. 915:24-916:4.)
C.L. was hesitant to answer, but eventually told DeLopez that
Petitioner was sexually abusing him. (T. 916:8-25.) DeLopez
waited for Lopez to finish his shift at work and went to pick
him up. (T. 917:22- 918:8.) When she picked him up, she told
Lopez that Petitioner had been sexually abusing C.L. (T.
387:14-388:24, 918:9-14.) When they arrived home, Lopez took
C.L. upstairs and confronted Petitioner about the alleged
abuse. (T. 388:13-389:2, 918:15-919:1.) Lopez knocked on
Petitioner's bedroom door, Sosa answered and Lopez stated
that he wanted to speak to Petitioner. (T. 389:5-25,
113513-25.) Lopez asked C.L. what Petitioner had done to him,
to which C.L. replied “[y]ou Artemio did something bad
to me.” (T. 390:6-15, 1136:5-8.) According to
Petitioner, he then asked what the “bad thing” he
had done was, received no response from C.L. and Lopez said,
“[i]f you say nothing happened we'll leave it like
that.” (T. 1136:15-1137:13.)
following day, July 1, 2005, C.L.'s parents took C.L. to
see Dr. Luis Herrera, C.L.'s pediatrician. (T.
397:17-398:20, 602:14-23, 607:5-9.) C.L.'s parents told
Dr. Herrera that C.L. may have been sexually abused. (T.
400:1-5, 608:5-609:5.) C.L. also told Dr. Herrera that
Petitioner had anally penetrated C.L. with his penis. (T.
609:7-610:5.) After learning the reason for C.L.'s visit,
Dr. Herrera inspected C.L.'s rectum. (T. 611:10-18.) The
results of the exam were normal and inconclusive as to any
sexual abuse. (T. 611:19-24, 618:16-619:18, 623:9-10.) Dr.
Herrera, however, did not have the necessary instruments to
determine whether C.L. had been anally penetrated, and he
therefore recommended that C.L.'s parents take C.L. to an
emergency room for a more thorough examination. (T.
612:2-613:1.) Given the nature of C.L.'s accusation, Dr.
Herrera called the police and the Administration for
Children's Services (“ACS”). (T.
612:18-613:1.) The police came to Dr. Herrera's office,
spoke with C.L.'s parents and C.L. about the sexual abuse
accusation and requested that C.L.'s parents bring him to
the office where the police handle sexual abuse cases. (T.
7, 2005, C.L.'s parents took him to the Nassau County
Police Department's (“NCPD”) child abuse
center, where C.L. was examined by Dr. Diane Lombardy. (T.
556:14-20, 926:1-11.) Dr. Lombardy physically examined
C.L.'s genitalia, rectum and anus with the naked eye and
with a colposcope, which is “a free-standing
microscope” that has a camera capable of capturing
photographs at four-to-twenty-five times magnification. (T.
506:8-23, 526:7-527:23.) Using the colposcope, Dr. Lombardy
captured twenty-four photographs of C.L.'s genitalia,
rectum and anus. (T. 529:1-530:18.) The photographs revealed
“smoothing” of the “folds of skin” on
the outside of C.L's rectum and “trauma inside the
rectal vault, ” which Dr. Lombardy opined indicated
“repetitive penetration.” (T. 543:7-552:20.)
NCPD assigned the investigation into the alleged abuse to
Detective Diane Barbieri. (T. 642:9-13, 645:9-646:6.) The
NCPD also assigned Detective Edwin Trujillo to assist in the
investigation because he had special training in
investigating child abuse cases and spoke fluent Spanish;
C.L. primarily spoke Spanish. (T. 642:9-646:14,
651:25-652:3.) On July 20, 2005, Detective Trujillo
interviewed DeLopez and C.L. at the NCPD child abuse center.
(T. 652:4- 655:6.) During the interview, C.L. told Detective
Trujillo how the sexual abuse took place. (T. 655:11-656:14.)
As a result, Detective Trujillo decided to arrest Petitioner.
Petitioner's arrest, questioning and confession
21, 2005, Detectives Trujillo and Barbieri located Petitioner
at approximately 9:30 PM, and Detective Trujillo approached
Petitioner and requested that he accompany them to the police
station to discuss the investigation. (T. 659:15-660:25.)
Because Petitioner was with Sosa, he asked Detective Trujillo
if Sosa could join them. (T. 661:1-4.) Detective Trujillo
consented to the request and Detective Barbieri drove
Detective Trujillo, Sosa and Petitioner to the police
station. (T. 661:4-662:23.) Petitioner sat, unrestrained, in
the rear of the police vehicle with Sosa. (T. 661:4-662:23.)
they arrived at the police station, Detective Trujillo took
Petitioner to an office where the detectives' desks were
located. (T. 663:10-24.) Detective Trujillo sat at his desk,
Petitioner sat in a chair across from Detective Trujillo,
Detective Barbieri sat at her desk and Sosa sat in a lounge
outside the detectives' office. (T. 664:2-667:11.)
Another detective that was not involved in Petitioner's
investigation was also in the office. (T. 667:8-11.)
the questioning, Detective Trujillo and Petitioner conversed
in Spanish. (T. 669:15-19.) According to Detective Trujillo,
he read Petitioner his Miranda rights from a
form. (T. 669:7-770:25.) Petitioner acknowledged
that he understood his rights by signing the form and decided
to proceed without an attorney present. (T. 675:9-677:6.)
Initially, Petitioner denied that he had sexually abused
C.L., but after Detective Trujillo informed him that there
was medical evidence showing that he had sexually abused
C.L., Petitioner admitted that he had anally penetrated C.L.
on three separate occasions. (T. 677:15-682:13,
693:1-695:25.) Petitioner told Detective Trujillo that the
acts took place in his bedroom on a “tan-colored
chair.” (T. 681:12-682:5.) Detective Trujillo
memorialized Petitioner's statement in writing, read the
statement aloud to Petitioner, asked Petitioner to correct
any errors in the statement, had Petitioner read the
statement and then had Petitioner sign the statement. (T.
682:6-683:16.) Thereafter, Petitioner was placed under
arrest. (T. 696:4-697:12.)
on the foregoing alleged events, on November 1, 2005,
Petitioner was charged with one of count of committing a
criminal sexual act in the first degree and one count of
sexual abuse in the first degree. (H. 5.) Petitioner rejected
the State's plea offer, (H. 5-10), and the case proceeded
trial spanned twelve days. (T. 315-1493.) The State's
witnesses were Lopez, Dr. Lombardy, Dr. Herrera, Detective
Trujillo, C.L. and DeLopez. (T. 1494.) Petitioner's
witnesses were Sosa, Dr. Stephen Ajl and
Petitioner. (T. 1494.)
direct examination, Lopez testified that he and Petitioner
were childhood friends in Guatemala. (T. 370:18-371:2.) Lopez
believed that Petitioner could read Spanish because he read
aloud from the Bible at church services in Guatemala. (T.
394:17-395:8.) Lopez immigrated to the United States in May
of 2000. (T. 372:1-4.) Petitioner immigrated to the United
States in approximately 2003, and upon arrival, lived with
Lopez and his family. (T. 372:19-25.) Approximately six
months after Petitioner moved into the Lopez family's
home, Sosa immigrated to the United States and moved into
Petitioner's bedroom. (T. 377:12-378:6.) Petitioner's
bedroom was on the second floor of the home, Elias also had a
bedroom on the second floor, and Lopez, his wife and two sons
shared a bedroom on the first floor. (T. 375:22- 376:25,
378:10-25.) In June of 2005, Dimas needed a place to stay
while he looked for housing and Lopez allowed him to sleep in
a common area on the second floor of his home. (T. 379:16-
the time Petitioner moved in, he appeared to have a good
relationship with Lopez's sons; he often played with them
and took them to the park. (T. 381:10-383:8.) In June of
2005, Lopez worked from 10:30 AM to 10:00 PM and DeLopez
worked from 7:00 AM to 3:00 or 4:00 PM, and Petitioner would
sometimes watch the children while Lopez and DeLopez were at
work. (T. 383:12-385:25.) On June 30, 2005, DeLopez picked
Lopez up from work and told Lopez that something had occurred
between Petitioner and C.L. (T. 387:14-388:24.) As a result
of that conversation, when Lopez arrived home, he went to
confront Petitioner with C.L. accompanying him. (T.
knocked on Petitioner's bedroom door and Sosa answered.
(T. 389:19-25.) Lopez told Sosa that he wanted to speak with
Petitioner. (T. 389:24-25.) Once Petitioner came to the door,
Lopez asked if Petitioner “wanted Flor [Sosa] to listen
to this, ” and Petitioner “changed color.”
(T. 390:1-5.) Lopez then instructed C.L. to state what
Petitioner had done to him, to which C.L. said “[y]ou,
Artemio, did something bad to me in this chair.” (T.
390:6-15.) Petitioner responded by asking Lopez if he
believed C.L., and Lopez said that he “[did not] want
to believe it.” (T. 390:22-391:1.)
on the conversation, Lopez decided to take C.L. to see Dr.
Herrera. (T. 391:16-21, 398:3-21.) Lopez and his wife
informed Dr. Herrera of the reason for C.L.'s visit, Dr.
Herrera examined C.L. and then he called the police. (T.
397:17-400:15.) The police spoke with Lopez, DeLopez, C.L.
and Dr. Herrera and then instructed C.L.'s parents to
bring him to the NCPD's child abuse center. (T.
400:16-402:2.) A few days later, Lopez and DeLopez returned
to the child abuse center for Dr. Lombardy to examine C.L.
cross-examination, Lopez remembered observing Petitioner
playing with the children in the yard in front of his home,
but could not recall specific instances of when Petitioner
played with the children. (T. 444:6-23, 446:1-4,
449:5-450:14.) Although Petitioner worked during the week, he
sometimes would be home alone watching the children while the
other members of the home were at work. (T. 451:4-452:12,
462:6-18, 466:3-19.) When Lopez or DeLopez was unable to meet
the children at their school bus stop after school ended,
Petitioner would meet the children at the school bus stop and
walk them home. (T. 453:18-458:9, 462:13-463:8.) Elias and
Dimas both lived in the home in May and June of 2005, when
Petitioner allegedly abused C.L., and they sometimes watched
the children when Lopez and DeLopez were at work. (T.
418:8-425:3, 437:11-438:13, 471:4-13.)
Dr. Lombardy testimony
direct examination, Dr. Lombardy testified that she is a
licensed physician with a specialization in pediatrics, and
at the time, was the attending physician at Nassau County
University Medical Center. (T. 504:11-505:10.) In that
position, she conducted “forensic evaluation[s]”
of children who may have been sexually abused to determine
whether there was any evidence of sexual abuse. (T.
506:1-11.) The forensic evaluation included, among other
things, interviewing the child and examining the child with a
colposcope. (T. 506:6-11.) A colposcope allows the examining
physician to observe whether there are any “very small
changes within the skin” that indicate sexual abuse.
(T. 515:18-516:14.) During a forensic evaluation, a
colposcope “is the [most] important instrument”
used by the examining physician and allows the examining
physician to observe changes that she could not observe with
the naked eye. (T. 507:17-18, 520:1-7.) Dr. Lombardy had
conducted approximately one thousand forensic evaluations
over the course of her career. (T. 514:22-24.) The Trial
Court qualified Dr. Lombardy as an expert. (T. 514:7-515:16.)
Lombardy explained that:
[t]he tissue within the rectum is a mucosal type of tissue, .
. . that [is] very similar to the tissue in your mouth. And
the anal tissue is very similar to the tissue on your skin.
All of these tissues have a lot of folds in them so they can
expand to allow for defecation . . . [and] [they] heal very
(T. 520:14-521:4, 523:2-524:3.) If a child has been anally
penetrated, the physician cannot determine whether the
penetration was conducted with a penis or some other object.
(T. 519:2- 7.)
Lombardy examined C.L.'s penis, scrotum, anus and rectum
with the naked eye and used the colposcope to capture
photographs of the areas. (T. 526:7-527:23.) The photographs
were admitted into evidence and shown to the jury. (T.
528:2-535:23, 542:1-544:24.) Dr. Lombardy opined that the
photographs of C.L.'s rectum showed
“smoothing” of the folds of skin, which was
“abnormal.” (T. 544:12-545:18, 548:5-549:4.) Dr.
Lombardy explained that “if you were to stretch 
out” the rectal tissue, it “would make a big
circle  because there [are] folds of skin where they fold
in on one another so that there [are] parts that are sticking
up and parts that are deep within a crevice.” (T.
548:2-16.) Dr. Lombardy further explained that smoothing
means that the “folds are no longer as evident, [t]he
creases are not as deep and  not as frequent as you go
around” the rectal tissue. (T. 548:17-549:4.) Dr.
Lombardy explained that smoothing of the rectal folds
“indicates that the tissues themselves have been
stretched over a period of time, that the natural folds of
the tissue are no longer present in that area, ” and is
“associated with repetitive penetration.” (T.
545:11-18, 549:17-550:13.) Dr. Lombardy also opined that some
of the photographs showed that a portion of C.L.'s rectal
tissue was “sticking out into the rectal vault”
when it “should be actually against the [rectal] wall,
” indicating that C.L.'s rectal tissue had
“been stretched and traumatized.” (T.
549:17-550:13.) Dr. Lombardy explained that the findings
could result from chronic constipation, but C.L. had no
history of chronic constipation. (T. 555:21-556:5.) Dr.
Lombardy concluded that the “findings [were] consistent
with sexual assault over an extended period of time.”
cross-examination, Dr. Lombardy explained that she reached
her conclusion that the findings were consistent with sexual
assault and not chronic constipation because she spoke with
DeLopez, who told her that C.L. never suffered from chronic
constipation, and nothing in his medical history documented
any past chronic constipation. (T. 557:1-559:7.)
Petitioner's counsel highlighted that prior to examining
C.L., Dr. Lombardy did not have knowledge of the triage
assessment that was taken at Nassau County Medical Center
when C.L. went to visit Dr. Herrera. (T. 560:3-563:25.) Dr.
Lombardy restated that while her findings indicated
repetitive penetration, she was unable to conclude whether
the penetration was conducted with a penis or some other
object. (T. 566:1-568:18.) Dr. Lombardy explained that she
did not find any scars, fissures or bleeding in C.L.'s
rectum during her examination, but given the speed with which
the rectum heals, a lack of scars, fissures or bleeding is
inconclusive. (T. 570:7-22, 577:1-578:23.) Dr. Lombardy also
explained that she could not determine the date at which the
penetration occurred. (T. 572:21-573:2.) Dr. Lombardy further
explained that her findings are consistent with repetitive
penetration, meaning that penetration occurred on ten to
one-hundred separate occasions. (T. 575:6-577:23.) Dr.
Lombardy stated that smoothing of the rectal tissue may be a
result of a biological disorder and not penetration, but C.L.
lacked the indicators and medical history of any such
disorders. (T. 586:9-588:10.)
Dr. Ajl testimony
testified for the defense to rebut Dr. Lombardy's
testimony. On direct examination, Dr. Ajl testified that he
is a licensed pediatrician, and at the time of trial, had
been practicing for approximately thirty years. (T.
1068:5-13.) He was the medical director of the Jane Barker
Child Advocacy Center in Brooklyn, New York, which focused on
treating and investigating cases of sexual abuse against
children. (T. 1069:1-11.)
reviewed the medical reports related to the case, examined
the photographs taken by Dr. Lombardy with the colposcope and
read Dr. Lombardy's testimony. (T. 1077:2-14.) Dr. Ajl
opined that the medical evidence was insufficient to
establish that C.L. had been anally penetrated. (T.
1080:13-24.) Dr. Ajl explained that:
the “smoothing of the [rectal tissue] and flattening of
the [rectal tissue] and the dilatation of the anus, were
findings on which the conclusion was based that there was
chronic penetration. The current state of the scientific
understanding of those findings is that those findings are
not findings which are diagnostic, . . . for children who
were anally penetrated. They are findings which could be
normal findings, they are findings which could result from
irritation or unspecific infection. They are not findings
which are, as I said, which are accepted by the medical child
abuse community and substantiated by scientific literature to
be findings that are diagnostic of chronic penetration.
(T. 1082:1-15.) On cross-examination, Dr. Ajl stated that he
could not opine that C.L. had not been sexually abused. (T.
1084:7-8, 1093:13-16.) The assistant district attorney
(“ADA”) asked Dr. Ajl if there are cases where a
child has been sexually abused, but there is no medical
evidence showing the abuse. (T. 1087:5-7.) Dr. Ajl agreed
that such cases exist. (T. 1087:8.) Dr. Ajl also admitted
that smoothing of the folds of the rectal tissue may indicate
that anal penetration has occurred. (T. 1089:25-1090:4.) The
ADA highlighted that Dr. Ajl did not examine or speak with
C.L. and that his opinions were based only on reviewing the
documents and testimony. (T. 1092:8-18.)
Dr. Lombardy's rebuttal testimony
Dr. Ajl opined that Dr. Lombardy's findings were not
indicative of anal penetration, the Trial Court allowed Dr.
Lombardy to explain why she disagreed with Dr. Ajl's
opinion. Dr. Lombardy testified that:
the smoothing in and of itself is not diagnostic; no finding
in sexual abuse is. Very few findings actually, I should say,
are diagnostic. Diagnostic is something like, you come in,
you're in an accident, you come into the hospital.
You've got a bone sticking out of your arm. . . . [If]
[i]t's not sticking out of your arm. We do an x-ray.
That's diagnostic. That's very clear cut. Most things
in medicine are not clear-cut like that. But what this child
had was more than smoothing, which is very suspicious for
child abuse. He had smoothing with easy dilatation with an
asymmetry to different aspects of the rectum, which is
usually symmetrical on any side. Whether you look from front
to back or side to side, there is always symmetry there. And
he had protrusion of the rectal tissues from the wall of the
rectum into the rectal vault. That's four aspects of very
suspicious findings in one patient. That is all I personally
need to make that, with a disclosure of having been
penetrated rectally. That's what I need, what I feel any
physician would need, to make a diagnosis of sexual abuse.
Dr. Herrera testimony
direct examination, Dr. Herrera testified that he is a
licensed physician, specializing in pediatrics, and at the
time, owned a private pediatric practice in Freeport, New
York. (T. 602:10- 604:3.) C.L. became a patient of his
practice in February of 2004. (T. 605:5-10.) On July 1, 2005,
C.L.'s parents brought him in for a visit because they
believed that “a penis was inserted in C.L.'s
rectum.” (T. 607:6-610:5.) When C.L. spoke with Dr.
Herrera, he explained how the sexual abuse had occurred. (T.
610:10-611:5.) Dr. Herrera then visually examined C.L. to
determine whether he had signs of sexual abuse, but found
none. (T. 611:10-11.) Dr. Herrera explained that his
examination was inconclusive because he did not have a
colposcope, which is necessary to determine whether there are
signs of sexual abuse. (T. 611:12-612:9.) Given the nature of
the reason for C.L.'s visit, Dr. Herrera recommended that
C.L.'s parents take him to an emergency room for a more
thorough examination and he called the police as well as ACS.
cross-examination, Petitioner's counsel asked Dr. Herrera
if he would agree that appropriate medical protocol in a case
of suspected sexual abuse of a child requires a physician to
interview the child outside of the parents' presence. (T.
616:13-25.) Dr. Herrera disagreed. (T. 616:25.)
Petitioner's counsel highlighted that Dr. Herrera's
examination revealed no signs of sexual abuse. (T.
618:16-619:18, 624:12-15.) Dr. Herrera explained that even
though the examination revealed no signs of sexual abuse, he
called the police and recommended further evaluation because
his examination was insufficient to determine conclusively
whether C.L. had been sexually abused. (T. 623:15-624:23.)
Detective Trujillo testimony
Detective Trujillo's direct examination, the ADA moved
in limine to exclude Petitioner's counsel from
questioning Detective Trujillo about prior allegations
accusing him of coercing confessions. (T. 639:8-640:13.) The
Trial Court denied the motion and stated that it would
address the issue if it arose. (T. 640:14-17.)
direct examination, Detective Trujillo testified that he had
been employed with the NCPD for over twenty years, eleven of
which were as a detective. (T. 642:15-22.) At the time, he
was assigned to the Special Victims Squad, which consisted of
“a group of detectives that investigate cases of a
sexual nature.” (T. 642:23-643:5.) Within the Special
Victims Squad, there was a subgroup of detectives called the
Child Abuse Section that specifically investigated alleged
sexual offenses against children under the age of thirteen
and Detective Trujillo was a member of that subgroup. (T.
643:2-20, 646:7-10.) He had specialized training in
investigating alleged sexual offenses against children and a
certification for interpreting and translating Spanish to
English. (T. 644:1-645:1, 651:8-24.)
NCPD assigned Petitioner's investigation to Detective
Barbieri and assigned Detective Trujillo to assist her
because she did not speak Spanish and was not a member of the
Child Abuse Section. (T. 646:4-6, 648:4-8.) After Detective
Trujillo learned that the case involved allegations of sexual
abuse of C.L., he made arrangements to interview C.L. (T.
646:11-647:11.) Detective Trujillo interviewed C.L. on July
20, 2005, and DeLopez was present during the interview. (T.
650:19-25, 652:1-13.) C.L. told Detective Trujillo the
specific circumstances surrounding the alleged sexual abuse
and how it occurred. (T. 655:11-656:14.) Detective Trujillo
also spoke to DeLopez, who provided him with all the
information she had concerning the allegations. (T.
653:8-654:13.) Based on his conversations with C.L. and
DeLopez, Detective Trujillo decided to arrest Petitioner. (T.
21, 2005 at approximately 9:40 PM, Detectives Trujillo and
Barbieri brought Petitioner to the police station for
questioning. (T. 659:20-663:24.) Detective Trujillo sat at
his desk in the detectives' office, Petitioner sat across
from him, unrestrained, Detective Barbieri was a few feet
away at her desk and another detective that was not involved
in Petitioner's investigation was approximately ten feet
away at his desk. (T. 665:15-667:15.) Because Detective