SUPREME COURT - STATE OF NEW YORK PART CT-3 - SUFFOLK COUNTY Present: Hon. William J. Condon, S.C. THE PEOPLE OF THE STATE.OP NEW YORK Indictment No. 00074-2020 001078-2020 Decision After Hearing MICHAEL VALVA ANGELA POLLINA, Hon, Timothy D. Sini, Esq. John LoTureo, Esq. Suffolk County District Attorney Attomey for Defendant, Valva Kerri Amn Kelly, Esq. 434 New York Aventio Assistant District Attorney ‘Huntington, New York 11743 Criminal Courts Building 200 Center Drive Anthony LaPinta, Esq. Riverhead, New York 11901 Attomey for Defendant, Valva 200 Vanderbilt Motor Parkway Suite C-17 Hauppauge, New York 11788 Matthew Tuohy, Esq. Attomey for Defendant, Pollina 7 High Street, Suite 300 Huntington, New York 11743 Defendants both stand charged with one count of Murder in the Second Degree in violation of Penal Law Section 125.25(4) and four counts of Endangering the Welfare of a Child ii violation of Penal Law Seotion 265.10(1) and 265,10(2).. On May 11, 2021 through May 17, 2021..a combined Huntley/Wade/Dunaway hearing was held pursuant to the order of this Court dated May 10, 2021 (see People v. Huntley, 15 NY2d 72 [1965]; United States v. Wade, 388 US 218 [1967]; Dunaway'v. New York, 442 US 200 [1979}). The People called Police Officer Cassidy Lessard, Sergeant Gregory Turzer, Detective Michael Ronea and Detective Noberto Flores, all with the Suffolk County Police Department. Defendant Pollina called Shana Curti Esq., Laura Lauretta and Tyrene Rodriguezas witnesses. Based on the credible evidence adduced at the hearing, the following findings of fact and conclusions of law are made. FINDINGS OF FACT ‘On January 17, 2020, at approximately 9:40 am., the defendant Michael Valva made a 911 call for help for his 8-year-old son, Thomas Valva. In the call, defendant Michael Valva reported that the victim Thomas Valva had fallen, banged hiis head, and that he stopped breathing after being placed in @ warm shower. He further stated that he, a member of the New York City Police Departirent, was performing CPR but it appeared that ‘Thomas’ belly was filling up with air and Thomas was still not responsive. ‘The Defendant Michael Valva stated that heand Thomas were in the basement, and that police entry should be made through the front door. Police Officer Cassidy Lessard from the Suffolk County Police Department responded to the 911 call. When entering the home at 9:46"a.m., she noticed a Ring eamera in plain view affixed to the side of the front door. Officer Lessard entered the basement and noted that the victim, Thomas, had no pulse and was cold to the touch, Thothas had no response to CPR-and medics were not ableto revive him. Officer Lessard carried ‘Thomas to an ambulance that actived at the scene. She broadcasted over the police radio that she was continuing CPR in the ambulance, ‘Minutes alter Thomas was removed from the Valva residence, Suffolk County Police Sergeant Gregory Turzer arrived at the house in response to the 91 L-call, As Sgt. Turzer approached the home, he was notified that Thomas was taken to the hospital and that the Defendant Valva was no longer home. The front door was open and Sgt. Turzer knocked briefly and then entered, where he was mét by Defendant Angela Pollina in the front entryway of the residence. Sgt. Turzer testified that his purpose at the Valva home was to obtain any information that would. be helpful in rendering medical assistance to Thomas. Police Officers who were present at the scene had not been informed of Thomas’ condition at that point, Sgt. Turzer and Defendant Pollina began to speak about the events of the moming. Ms, Pollina stated to Sgt. Turzer that Thomas and Defendarit Valva were outside waiting for the school bus when Thomas apparently fell, Pollina told them Valva broughtt Thomas back into the home though the garage. Pollina further stated to Spt. Turzer that Thomas was erying, however, that crying excessively for a small injury was common for Thomas because he had autism. Pollina led Turzer to the driveway to show them where Thomas had fallen. They then vwent back into the house together where Pollina continued to provide Turzer with more details about the events of that morning, noting that Valva took Thomas into the basement to clean him because he had soiled! himself. Pollina told Sgt. Turzer that Valva brought the child downstairs to give hitn-@ shower fo clean him off and then stated that shortly after that Thomas had. stopped breathing and lost consciousness. Sgt. Turzer and Officer Haines, who also responded to the 911 Page 2call, went 10 the basement where they observed medical equipment used to revive Thomas and where Thomas was while he was receiving medical treatment. Pollina never objected to the officers going into the basement, Shortly after they rejoined Pollina on the main floor. Pollina continued to speak with Officer Turzer about the sudden change in Thomas? condition and how his legs were shaking and he was erying uncontrollably. Tyrene Rodriguez, Valva’s housekeeper, was also present for parts of the conversation. In addition, Ms. Rodriguez assisted the defendant and co-defendant in trying to zevive Thomas, After the conversation with co-defendant Pollina, Sgt. Turzer offered to have members of the Suffolk County Police Deparment bring her to the hospital, which she declined, indicating she would drive herself, Sgt, Turzer further testified that he told Pollina he wanted to stay at the home to see if there was any information he could provide to medical siaiT'in order to assist with Thomas’ treatment. Turzer testified that he asked her if that, was permissible and that if the police stayed and left the-house prior to Michael Valva or Angela Pollina coming home they would lock up, In the alternative, if the officers left while Ms, Rodriguez, was still there, then Ms. Rodriguez could make sure the house was locked, Pollina responded, “Okay, that’s fine,” then left minutes later. Sgt. Turzer and Officer Haines stayed at the residence with Tyrene Rodriguez. A short tims later, Detective Noberto Flores of the Suffolk County Homicide Squad responiled to Long Jsland Community Hospital where he was beginning his non criminal investigation into the death of 8- year-old Thomas Valva, At approximately 11:30 a.m. he began interviewing Michael Valva. During thet interview, Valva confirmed that there were cameras throughout the house and told Detective Flores that Defendant, Pollina, would have the information to access the cameras. Furthermore, Valva voluntarily told Detective Flores where he could find the clothing Thomas was wearing the morning of his death. Detective Flores indicated he told Valva that the clothing and the stored information on the cameras might be useful in trying to determine what caused the death of his 8-year-old son, Valva then voluntarily recounted the events of the moming of January 17, 2020. The defendant stated that he was watching Thomas from inside the home and was raomentarily distracted, and when he tamed bback he saw Thomias face down in the driveway. He stated that he went outside to help Thomas and, although he had somé serapes, Thomas vias otherwise fine, He told the detectives that ‘Thomas had defecated and that he brought Thomas to the garage, changed him, and put the soiled clothes in a bag and put the bag on a patio in the backyard. The defendant voluntarily told the detectives where the bag was located and the contents of the bag. ‘The defendant then recounted how he took Thontas into the basement of thé house and gave him a warm shower as he was complaining about being cold, He then stated to the detectives that Thomas’ condition ‘was worsening and eventually he lost consciousness and stopped breathing. Valva then called Angela Pollina downstairs to assist, then proceeded to call 911. Page 3Once Detective Flores received this information, he called Detective Ronca, who was at the home securing the scene, He relayed all the information to Detective Ranga that he had received from Valva and directed Detective Ronca to gather all of the evidence. At na point did ‘Valva ask for an attorney, nor was he placed under arrest. Detective Flores, after speaking with Valva, went to speak to co-defendant Pollina, who ‘was in a hospital bed in the emergericy room as she was being tieated for anxiety after the tragio events of the moming, During the interview with Pollina, Detective Flores asked her for the username and password for the Ring and Nest cameras throughout the home to assist in their investigation of Thomas’ death. Pollina gave Detective Flores the uscmame but then became upset before giving the password, Again, at no time did Pollina ask to stop the questioning and continued to give the information to Detective Flores voluntarily. After some pedigree information, Detective Flores began to ask Pollina about the Nest and Ring cameras in the home ‘and told her that the information stored on them might be helpful in tryirig to determine what had happened to: Thomas. Pollina responded that the Ring camera did not work and that they worked off of Wiki, however, she also stated that she had not accessed the Nest camera ina while. She ffarther stated that the Nest camera did not always work, but did relay the username 10 the camera account, which was her email, but that she could not remember the password at that time. Detective Flores began to fill out a Permission To Search form, however, Pollina became upset about how het other children would get home from school and Det. Flores ended the interview. Ms. Laura Laurette was called to testify at the hearing by the defendant Pollina. She testified on direct that when she arrived at the hospital at approximately 12:00 P.M, she was directed to the emergency room where Angela Pollina was being treated. She testified that the room was dark and Pollina was taying in a hed:with her head turned in the other direction trom where Ms. Laurette was sitting. She further testified that when she tried to’ speak with Pollina, she did not respond. In fact, Ms. Laurette testified that she believed Pollina was sleeping. She then testified that a nurse who was attending to her explained that Thoraas had passed and that medication was adéninistered to Pollina. She testified on direct that Angela appeared groguy, sleepy and was moaning. She further stated that once she was notified that Thomas passed, Ms. Laurette became very upset and didn’t really remember much after that, Finally, she stated that members of the police department came in anid asked her to step out. Detective Flores then told Valva he was going to the house, At no point did! Valva have any objection to that or tell the detective that the other members of the police department should leave, nor did the defendant say he wanted or already had an attorney. He was fully cooperative and never stated any concerns or objections about the police presence in his home. Detective Ronca testified that when he arrived at the home he noticed a Ring camera to the left of the front door and a Nest camera above the door in plain view. Furthermore, while Detective Ronca was at the home, le noticed several other cameras around the house in plain view. He noticed cameras in the basement, oi a Step in the garage, and another in the den area, Page 4‘Also, during the course of the investigation, photos were taken, neighbors were interviewed, and. a walk-through of the driveway was done to try to determine where Thomas had fallen. No blood or inarks were found by the detectives in the driveway where Thomas purportedly fell, Shortly thereafter, officers at the scene, including Sgt. Turzer, were informed of Thomas” passing ‘At approximately 2:11 p.m., Valva and Pollina retumed home from the hospital. Upon their arrival, detectives were all outside. Detective Flores asked Pollina if he could speak with her regarding access (o the content of the cameras, Pollina advised the detective that the password was in a notebook in her bedroom and that she would get it. She and Defective Ronea ‘wont upstairs together so she could retrieve the password. Detective Ronea testified that she did not appear unsteady on hier feet nor did she have slurted speech. Thete was no indication through testimony that she was in any impeired condition that might render her consent invalid. ‘He testified that they had-a conversation about how her other children would get home from school and she appeared concerned. She made no objection at that time to reftieving the password. According to the testimony, she entered her bedroom and gave the detective the password, but never even looked at the notebook. Detective Flores then explained to Pollina that he needed her consent to’search the information stored on.the cameras and she, with no objection, consented and signed the “Consent to Search” form after the detective read it to her verbatim, The “Consent to Search” form was entered into evidence by the People. Itstates in pertinent part; 1, Angela Poltina, 5/21/77 having been informed of my consttutional right to not to have a search made of my person, premises, motor yehicke ‘or other personal property without a search warrait, and having been informed of my right to refuse to consent fo such a search, and understanding that evidence and/or contraband found as a result of such search may be scized and used against me in & Court of Law, hereby authorize Det. Flores #1433 or any other Police Officers of the Police Department ‘of Suffolk County, to;conduct a complete search of my personal property at 11 Bittersweet Ln. Center Moriches Suffolk County N.Y. described as NEST and RING surveillance video. am gi this written permission voluntarily did without theéats or promises of any kind At 2:15 pan., Pollina signed, dated, and printed the time on the form in the detective"s presence, After she signed the document, the username and password were provided to the Electronic Investigation Section of the Suffolk County Police Department. Around 2:45 p.m., Valva asked one of the detectives to speak with Shana Curti, Esq., ‘Valva’s divorce attomey. Detective Ronca briefly spoke with her but then gave thie phone to Detective Flores, as he was the lead detective, Detective Flores spoke with Ms, Curti and explained that they were conducting a death investigation and that as a part of that, they were processing the'scene. Hie told her they wete “wrapping it up” and would be leaving soon. Page §Detective Flores testified that she never asked the detectives to leave, she never asked him not to speak with the defendants, and she never seid that she represented either defendant on this investigation. Shana Curti testified for the defense and stated that she did, in fact, tell the police to leave and io cease any search. She also identified herself as the defendant Michael Valva’s matrimonial attorney. On cross-examination by the People, Ms. Curt testified that her only intention during that phone call was to ensure the defendants were left alone to grieve, When asked whether slie asked police to’stop searching she said “No,” and on cross-examination she was asked if she told Detective Flores that she was an attorney and whether she told the detective not to talk to her clients, her response was, similarly, “No.” She testified that it wasa hectic day and she wainted the family to have privacy and to “stop looking around the home and leave them be.” She further testified that she was not a criminal attorney and that she “ didn’t think they needed a criminal attorney”. She also testified that she looked at her cell phone in providing the time line of her phone call with Detective Flores, She testified that her phone call with Detective Flores was at approximately 2:05 p.m. ‘The detective and Ms. Curti exchanged information and, shortly thereafter, all members of the SCPD left the home. The time line of the phone call was challenged further by the People on cross-examination, discussed further below. CONCLUSIONS OF LAW With respect to that branch of the defendants” motion to suppress evidence based upon an unlawful search by the Suffolk County Police Department (SCPD), that application must be denied. ‘The Court finds the testimony of all the witnesses to be credible. ‘Ona motion to suppress evidence, itis the burden of the People to, demonstrate the logality of police conduct in the first instance (People », Thomas, 291 AD24 462. [ 2 dept 2002): citing People v. Berrios, 28 NY2d 361 [1971]). However, itis the defendant who bears the ultimate burden of proving, by a preponderance of the credible evidence, that the evidence should not be used against him and that the police lacked probable cause to seize the items. (see People v, Mithouse, 246 AD2d 119 [1* Dept 1998). Defendants claim the police conducted a warrantless search of the home and all of the tangible items and the subsequent items of evidence should be suppressed as the fruits of an illegal search. The Defendants argue that the People rely on the “emergency exception” to the warrant requirement. However, Defendants’ position is that exception does not apply hete, where the 8-year-old victim, was.already transported to the hospital for tresitment and there was no longer an emergency and also no longer any threat of the defendant or co-defendant destroying any evidence. ‘The People argue that the warrantless search was legal, and all evidence obtained therefrom should not be suppressed and should be admissible at trial, They argue that under the emergency exception to the warrantless search rule the police made Inivfil entry into the home based on the emergency of an 8-year-old who suddenly stopped breathing. Furthermore, they argue that once lawful entry was made, any items in plain view and any items of evidence which were the result of a voluntary consent by either defendant should be Page 6admissible at trial. In addition, the defendant and co-defendant called their prior matrimonial attomey, Ms. Shiana Curti, Esq. to testify at the hearing, She testified that she spoke with police officers at the scene and advised them (o'cease searching the horne. The deferidants have argued in their motion papers that any and all evidence derived from the home after that conversation vwas a result of an improperly conducted search and all evidence was illegally obtained. The People argue that the conversation.detectives had with Ms, Curti was well after all the evidence was already collected asa result of consent by the defendant Michael Vatva and his co- defendant, Angela Pollina and that after the phone call from Ms, Curt all menibers of the SCPD left the scene. Furthermore, the People contend that any search for the items for evidence at issue inchiding, but not fimited to, the Nest cameras and Ring doorbell, clothing worn by the victim on the date of bis death, other items of physical evidence located in the basement and garage were a result of a verbal and written consent by Defendant Valva and Co-defendant Angela Pollina, and all items derived therefrom were’a result of a legal search and seizure, ‘The defendant contends that evidence the People intend to use at trial should be suppressed as @ result of an unlawful search and seizure, arguing that the police had no permission, express or implied, to conduet any search as the emergency had abated. The evidence in question includes, but is not limited to: video footage; clothing; items retrieved from the basement and garage; and other itemas both physical and electronic, The People contend that the record is clear that after the police responded to the einiergency 911 call under the “emergeney doctrine” exception to the warrant rule, members of the SCPD observed certain items of evidence in issue here in plain view and then obtained & valid consentt to search these and other items further. Under the "emergency doctrine,” the police may make 2 warrantless intrusion into a protected area if three prerequisites are met: (1) The police must have reasonable grounds to. believe that there is an emergency at hand and an immediate need for their assistance for the. protection of life or property; (2) The search must not be primarily motivated by intent to arrest and seize evidence; (3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched." People v Stanistans-Blache, 93 AD3d 740, 741-42 (2d Dept 2012) see People v. Molnar v. 98 N.Y.2d 328 (2002). Governmental intrusion into the privacy of the home is, with limited exceptions, prohibited by constitutional limitations in the absence of a valid scarch warrant. People v Gonzalez, 39 N.Y 2d 122, 127 (1976) (citing NY Const, art I, § 12; US Const, Amats IV, XIV; see People v Loria, 10 N.Y 2d 368, 373 (1961); Silverman v United States, 365 U.S. $05, 5t1 (1961); Janes v United States, 357 US. 493, 498(1958); ef. People v Gleeson, 36 N.¥.2d 462, Page 7466(1975)). One of the limited exceptions tothe warrant requirement and, indeed, to the requirement of probable cause, is voluntary consent to the search. Gomzalez, 39 N.Y.2d at 127 (citing People v Singletearp, 35 N.Y 2d 528, 532 (1974); People v Carter, 30.N.Y.2d 279, 282 (1972); People v Petow, 24 N.Y.2d 161, 165 (1969); People v Loria, 10 N.¥:2d 368, 373 (£961), supra: Schneckloth ¥ Bustamonte, 412 U.S. 218, 219, 222 (1973); of. People v Lane, 10 N.Y.2d 347,353 (1961)). Here, the police were called to-an emergency situation related to an 8-year-old child who ‘was not breathing, Clearly, inthis regatd lawful entry to the home was made under the “emergency doctrine" and based on consent as Valva'in his 911 call stated police could enter. ‘The testimony adduced at the hearing shows that initially, Police Officer Lessard personally observed the Ring cameras at the door. In addition, Detective Ronca testified that he saw the Ring and Nest camera in plain view. Sgt. Turzer testified that he arrived at the scene only moments after Thomas was taken by ambulance and that the daor was open. He knocked, went ‘in and met the defendant Pollina in the foyer, whom he could see through the door, No evidence ‘was adduced at the hearing that Pollina {old him to. leave or that she had any objection to him being there or to speaking with him about the events of that morning. ‘There is no evidence of undue pressure, threats, or coercion on Sgt. Turzer’s partin gaining entry into the home even alter Thomas was removed from the seene. Itis clear from the record that at this point, ‘Thomas’ condition was unknown to everyone, inchiding family and members of law enforcement, Sat, Turzer testified that he had a conversation with Pollina, who did not object to him staying in the residence after she. left and, in fact, agreed to allow the housekeeper, Ms. Rodriguez, to lock up in case they left before the family came back home. Here, the testimony shows that members of the SCPD ehttered the home as aresult of a 911 call and were given permission to stay in the home even after the victim was transported to the hospital, and the electronic evidence was seen by these officers in plain view while they wete legally in the home in response to an emergency involving the death of an.8-year-old boy. Finally, and most compelling, both Defendant Vaiva and Defendant Pollina consented expressly and impliedly to the search and seizure of the items of evidence in issue, Suppression of evidence should be denied where police entry was proper under both consent and emergency circumstances exceptions to prohibition against warrantless searches and seizures, See People v, Fotkes, 43 AD.3d 956 2d Dept. 2007). ‘The record also.indicates that Defendanit Valva voluntarily told the detective where ‘Thomas’ clothes from that morning would be located and made no objection to SCPD accessing the video footage. As a matter of fact, he told the Detectives that they should talk to co- defendant to retrieve the username and password to gain aceess to the cameras. Therefore, the People have met theit initial burden in showing that the police conduct. was legal. The burden then shiits to the defendant to show by a preponderance of the evidence, that the police conduct was not Jegal and all evidence derived therefrom should be suppressed. ‘This Court finds the defendant and co-defendant have not met their burden. Page 8The state has a ficavy burden of proving the voluntatiness ofa defendant's purported consent to a-watrantless seaich. Gonzalez, 39 N.Y.2d-at 127 (see People v Kuhn, 33 N.Y 2d 203, 208 (1973); People v Whitehurst,25 N.¥.2d 389, 391 (1969); Bumper v Nosth Carolina, 391 US. 543, 548-49 (1968); People v Jackson, 46 A.D.2d 816, 817 (2d Dept. 1974), aff 39 ‘N.Y.2d 64 (1976); People v Talbot, 44 A.D.2d 641 (3d Dept. 1974); People v Stepps, 31 A.D.2d 59, 62 (4d Dept. 1968)). Consent to search is voluntary when itis a true act of the will, an unequivocal product of an essentially free and unconstrained choice. Voluntariness is incompatible with official coercion, actual or implicit, overt or subtle. Gonzalez, 39 N.¥.2d at 127 (see People v Kult, 33 N.Y.2d 203, 208 (1973), supra; Schneckloth v Bustamonte, 412 US. 218, 225-28 (1973), supra). As the Supreme Court stated in Bumper v North Carolina (391 U.S. $43, 550 (1968), supra), "Where there is coercion there cannot be consent.” Whether consent has been voluntarily given or is only a yielding to overbeating official ‘pressure must be determined from the circumstances. People v Gonzalez, 39 N.Y.2d 122, 124 11976). Here, the record is clear that defendant Michael Valva fkeely and of his own volition consented to the police presence in his home, While being interviewed by Detective Flores at the hospital, he was advised that his home at 11 Bittersweet Lane, Center Moriches, NY was being processed. At no time verbally, or by his conduct, was there dny evidenee to suggest that he objected to the scene being processed. A reasonable person in Detective Flores” position ‘would believe that he and other members of the SCPD had his consent to search the home. In addition, prior to leaving the hospital, Detective Flores advised the defendant he was going to the home at I1 Bittersweet Lane Center Moriches and there was no objection by Valva or Pollina. This Court finds that based on the totality of circumstances, including but not limited to the defendant’s employment as a police officer, there was a valid consent to search. Furthermore, with respect to certain items of physical evidence, namely the victim’s clothing on the morning of his death, this Court similarly finds a valid consent to search and seize, Here, Defendant Valva, on his own, told the detectives that Thomas Valva soiled himsel? and after the defendant cleaned him up, he put the dirty clothes in a plastic, bag and put it on a porch in the backyard. ‘That information was voluntarily given to Detéctive Flores. It should also be noted that at that point no members of the SCPD had searched'the backyard priot to receiving that information, Those items were only recovered because the defendant told them where they could be located. In addition, thete were no threats or coercive behaviors by the police, and Pollina’s and ‘Valva’s cooperation with the police investigation is evidence of voluntary coissent (seé, People v Gonzalez, 39 N.Y .2d 122, 129 (1976); People v Abrants, 95 A.D.2d. 155 (2d Dept. 1983). Ever. if there were no words of consent from the defendant, which there were, Pollina’s consent could be inferred ftom her conduct, ie., her words, deeds and gestures in’admitting the police-officer into the house (see, People v Whitehurst, 25 N.¥.2d 389, 392 (1969); People v Abrams, supra), Page 9Here, Defendant Angela Pollina consented to the police presence in her home even afler Thomas was taken to the hospital and-she‘and Defendant Valva were not there. She furthier voluntarily, gave Detective Flores the username and the password for the Nest camera and furthermore signed a Consent to Search form which clearly states that she-was giving the written permaission voluntarily and without threats or promises of any kind, She made no objection, either express or implied, to signing this document, Furthermore, defendant Michael Valva, who was present during the time, never made any objection to Pollina signing the Consent to Search form for the cameras. Consent is also clearly established where Pollina voluntarily brought Detective Ronca up to her bedroom to retrieve the password from a notebook in a closet. He followed her up the stairs and into the bedroom and no evidence was adduced that she objected in any way, In addition, no testimony was elicited during that hearing that would suggest that Defenidait Pollina was in an impaired condition’ at the time where her consent would not be & ‘tue consent. There is no evidence of her sluriing her words or being unsteady on hier feet. She spoke with Detective Flores at the hospital and. gave all the correct information and, in fact, when the detective felt she was too upset to continue, he stopped all questioning and left. At all times she was fully cooperative with all the members of the Suffolk County Police Department, on January 17, 2020 and the days after. No threats or promises were made, no undue pressure was placed on her and certainly she was not in custody and was always free to leave the situation or cease conversation Although defense witness Lanta Loretta testified that Angela Pollina seemed “groggy” at the hospital and it seemed that she was sleeping, this Court does not find that the defendant has proven by a preponderance of the evidence that she was so.impaired so as to make her consent to Detcotive Flores invalid. Here, the testimony of Detective Flores shows that Angela Pollina did engage in conversation with him and that all the information that she did provide was voluntary and, ultimately, correct, Additionally, both defendants had the requisite degree of authority and control over the premises to provide consent which would be binding on each one. With respect to the Defendants’ previous argument, that the evidence must be suppressed because they invoked their right to counsel when Ms. Shana Curti, Esq. called the home and advised the detectives to cease any search and seizure, itis similarly without merit. Here, the evidence on the defendants’ case by way of Ms. Curti’s testimony is clear that the conversation she had with members of the Homicide unit was not at the time she had testified 16 on direct. Her direct testimony was thal she spoke with the police at 2:05 p.m, Howevery on cross examination she acknowledged that the phone call was much later. She did testify that she told the potice to leave the premise and stop the search. Even if that statement was made, it was well afer all the evidence had been colleoted and the SCPD were about to leave the premises. The search ended at approxiniately 2:45 P.M., around the same time-as the phone call from Ms, Curti to Detective Flores, as evidenced by Ms. Curtis testimony under cross-examination by ADA Levy. Page 10Therefore, Defendants” respective motions to suppress evidence based upon an imlawful seatch by the Suffolk County Police Department (SCPD), must be denied. “The People have satisfied their burden of proving that the police conduct'on January 17, 2020 was legal, and the defendant has failed to satisfy its burden by a preponderance of the evidence that the evidence was a result of improper police conduct. ‘With respect to the Huntley portion of the hearing, evidence of a written confession, or other statement made by a defendant with respect to his participation or lack of participation in the offense charged, may not be received in evidence against him in a criminal proceeding if such statements were inrvoluntatily made (sce Criminal Procedure Law §60.45). The prosecution hhas the burden of proving the voluutariness of any admission or confession beyond a reasonable doubt (see People v, Huntley, 15 NY2d 72 (1965). Initially, the oral statements made by Ms. Pollina inside of her home-and by Mr. Valva at the hospital were spontaneously made (see People v, Buffa, 266 AD2d 400 [1999]). They were not made as the result of custodial police questioning, nor were they the product of police interrogation (see People v. Doyle, 273 AD2d 69 [2000]), Defendants did not make the statements as the résult of imiprope? inducement, provocation, encouragement or acquiescence by law enforcement personnel (s¢e People v. Maerling, 46 NY2d 289 [1978]; People ». ‘Scotchmer, 285 AD2d 834 [2001]). These statements were spontaneous on the part of the Defendants and not the result of police inducement, provocation or encouragement (see, People v, Stoesser, 53 NY 2d 648, 438 NYS 2d 990). Accordingly, the Court concludes as a matter of Jaw that the People have established beyond a reasonable doubt that the oral statements made by both defendants to members of the police department were voluntary, meaning that they were not “involuntasily made” within the meaning of CPL §60.45 (2); afd consequently, these statements will be admissible at trial. With respect to the statements made by Defendant Valva at the hospital, the Court finds that they, were not the product of custodial interrogation but rather, part of non-criminal investigatory questioning on the part of the Detective Flores. At no time during theie brief conversation was the defendant under arrest and he was not in police custody at that time. Defendant spoke-with Detective Flores for a limited amount of time, the defendant’s movement was in no way restricted and the nature of the conversation was investigatory rather than uccusatory (see, People v. Parsad, 243 AD 2a 510, 662 NYS 2d 835). Under these facts, the Détectives's questions constituted a non-custodial investigatory inquiry for which Miranda warnings were not requited-(see, People v. Bennett, 70 N.Y.2d 891, 893, 524 N.Y.S. 2d 378; People v. Goodings, 300 A.D.2d 50, 750 N.Y.S. 2d 298, lv. denied, 99 N.Y.24 628, 760 NY S. 2d 109; People v, Mason, 137 A.D.2d 859, 860-61, 50N.Y.8. 2d 432; People ¥ Brown, 104 A.D.2d 696, 697, 480 N.Y.S, 24 578, ly. denied, 64 N.¥.2d 778, 486 N.Y.S, 2d 1027). Forall these reasons, the Court concludes as a matter of law that the People have established beyond a reasonable doubt that these oral statements made by defendant were voluntary, meaning that they were not “involuntarily madé” within the meaning of CPL. § 60.45 Page 112); and were properly noticed by the People under CPL. $710.30 and consequently, these statements will be admissible at trial Similarly, all the oral statements made by the co-defendant Angela Pollina were not a product of a custodial interrogation. All the statements made by her were a result of zoutine investigatory questions, ‘The People have proven beyond a reasonable doubt that all statements were made by her voluntarily and not a product of threats or coercion, CPL. §60.45. The statements made by her fo law enforcement, were not a result of a custodial interrogation by the police and were not the result of undue pressure or threats. The:Court finds that the People have proven beyond a reasonable doubt that Pollina’s oral statements made to law enforcement were voluntary under CPL, § 60.45 and thetefore, all statements made by both defendants will be admissible at tial. Therefore, both motions of defendants to suppress physical evidence and statements are denied. ‘The foregoing shall constitute the decision and Opder.of the Court. Dated: y/ ¥ifoz/ sclites, ( Bvalby Rivffhead, NewYork Hon, William J. Zondon, 1:8.C. Page 12