Defendant, Richard A. Rodas, Jr., was indicted for one count of Sexual Abuse in the First Degree, in violation of Penal Law § 130.65(2), a class D violent felony; one count of Forcible Touching, in violation of Penal Law § 130.52, a class A misdemeanor; three counts of Endangering the Welfare of a Child, in violation of Penal Law § 260.10(1), all class A misdemeanors and one count of Conspiracy in the Sixth Degree, in violation of Penal Law §105.00, a class B misdemeanor.

Defendant, moved for assorted forms of relief as requested in his Notice of Omnibus Motion dated October 9, 2015.

The Court subsequently ruled on his Omnibus Motions and granted his application for so called Huntley [People v Huntley, 15 NY2d72 (1965)], Sandoval [People v Sandoval, 34 NY2d 371(1974)], Probable Cause and Mapp [Mapp v Ohio, 367 US 643, 81 S.Ct 1684, 6 L Ed2d 1081 (1968 )] hearings.

The hearings were conducted, in the defendant's presence, over two days, to wit: December 8, 2015 and January 13, 2016. The Sandoval issues were decided on the record on December 8, 2015 with the Assistant District Attorney to submit an order.

At the conclusion of the Huntley , Probable Cause and Mapp hearings, counsel were [*2]given an opportunity to file submissions and the case was marked submitted on March 25, 2016.

Based upon all the submissions, arguments of counsel, the hearing and all the proceedings herein the Court decides as follows:

The defendant claiming to be aggrieved by an unlawful and/or improper acquisition of evidence, has moved to suppress the following:

1) Certain letters and oral statements set forth in an Article 710.30 notice and made by the defendant at various times on March 4, 5, 9 and 18, 2015 to a Yates County Department of Social Services (YCDSS) Child Protective Services (CPS) worker, while defendant was incarcerated at the Yates County Jail, claiming that the CPS worker was acting as an agent of law enforcement at the time and also involuntarily made within the meaning of CPL §60.45,

2) Evidence from the contents of the defendant's cell phone was illegally seized by Penn Yan Police Department (PYPD) Investigator Thomas Dunham as a result of an unlawful search and seizure based upon a defective search warrant. And the defendant's cell phone and certain letters were obtained illegally by Dunham during his investigation.

3) Defendant's custodial detention at the time was not based upon probable cause therefore requiring suppression of his statements and certain letters he turned over to the CPS worker.

Two witnesses testified, both on behalf of the People. The Court gives full credence to the testimony of those witnesses.

At a time in February of 2015, Leslie McInnis, a CPS worker for the YCDSS, was investigating a child neglect/abuse matter involving the defendant and a possible co-conspirator (hereafter referred to as J ). The investigation was based on inadequate guardianship by J of her 15 year old child (hereinafter referred to as A ), in that she allowed the defendant who had lived with J to have sex with the child and otherwise act improperly including requesting nude photographs of the child and pulling her pants down.

McInnis made an initial complaint about these allegations to PYPD Investigator Thomas Dunham on or about February 11, 2015. She advised Dunham that the child's mother, J , had been dating the defendant who was currently in the Yates County Jail.

Dunham then spoke with J on February 13, 2015 at her house about the allegations involving the defendant and her daughter. She said that she would come to the PYPD on the following Monday, February 16, 2015, to discuss the matter further. J and Durham talked two different times on the 16th resulting in Dunham preparing two written statements, one at 12:00 noon (Exhibit 15) and the other at 3:10 P.M. (Exhibit 16) which J signed under penalty of perjury. Dunham spoke with J the second time because he felt she hadn't been fully truthful in that she hadn't given him the full story on their first visit. She also told Dunham that she and the defendant had lived together and had threesomes with A . J said that she used her Pantech cell phone to video tape and photograph her daughter and the defendant used a Samsung Tracfone. J also stated that the defendant had written her letters while he had been in jail and she still had some in her possession. J voluntarily gave Dunham the SIM card and defendant's Samsung Tracfone cell phone which was at her home and according to J contained photos and videos of her daughter. J also freely gave Dunham her Pantech cell phone and SIM card in [*3]addition to various letters (Exhibits 12, 13 and 14) written to J by the defendant or by J to the defendant.

Prior to March 4th, McInnis told Dunham that she was going to speak with the defendant at the jail on March 4, 2015. She asked Dunham if he wanted to accompany her. He said, No because the defendant already had an attorney on an unrelated matter so he could not speak with him without an attorney. Furthermore, the defendant had told Dunham that he would not speak with him without an attorney.

McInnis also knew that the defendant had invoked his right to counsel but she did not know why he was incarcerated at the time.

Although Dunham and McInnis had spoken approximately four times before her first conversation with the defendant on March 4th and each time after her four jail visits with the defendant, Dunham did not give McInnis any direction or instructions regarding any of her meetings with the defendant at the jail.

On her first visit to the jail on March 4, 2015, McInnis advised the defendant that she was there to talk with him about a CPS report. They spoke alone in an interview room for approximately twenty minutes to a half an hour. The defendant sat in a chair and was not physically restrained. He seemed relaxed when they spoke.

They talked about the allegations of inadequate guardianship as it concerned the children.Defendant said that J 's daughter, A , referred to him as dad. McInnis asked the defendant about the allegations of sexual abuse. He said that J was sending pictures of the child. J alleged that Defendant was sending inappropriate pictures of the child but the defendant denied these allegations. As McInnis left the jail, she told the defendant to get ahold of her if he had anything else to add.

On March 5, 2015, a Yates County Corrections Officer (CO) called McInnis advising her that the defendant requested to speak with her. McInnis went to the jail, they talked and the defendant gave McInnis certain letters that J purportedly had written to him, some of which were sent to the defendant while in jail. He told McInnis to keep the letters as long as she wanted. McInnis took the letters but never had any instructions from Investigator Dunham regarding same. She made copies (Exhibit 11) and also gave a copy to Investigator Dunham. Dunham also showed her the letters Dunham had obtained from J . McInnis also gave Dunham copies of her notes of her conversations with the defendant. One time when they spoke, McInnis told Dunham about the letters. He told her not to focus on them because he intended to seek a warrant to obtain them.

After copying the letters McInnis returned the originals to the defendant on or about March 9, 2015 as, in her opinion, they were the defendant's. She did not recall telling the defendant that she had given copies of them to law enforcement. But she told the defendant that law enforcement has to give CPS what they have and CPS can give certain things to the police as well.

McInnis last saw the defendant at the Yates County Jail on March 18, 2015. They spoke for approximately fifteen to twenty minutes. As on prior occasions she never discussed specifics with Dunham prior to speaking with the defendant.

Regarding their conversations, no promises or threats were ever made to the defendant. He appeared calm and not upset. He was not restrained in any manner and he never asked to [*4]speak with a lawyer during any of the conversations between him and McInnis.

McInnis never took part in bringing the criminal charges against the defendant or J , although McInnis did eventually testify before the Grand Jury. The defendant's arrest report shows that the defendant was arrested on April 20, 2015 for the charges at bar and the subject indictment was filed on September 9, 2015.

Dunham prepared separate affidavits for search warrants for the defendant's Samsung Tracfone with disk (Exhibit 10) and J 's Pantech cell phone and SIM card (Exhibit 2). They were presented to the Penn Yan Village Justice who issued search warrants on March 5, 2015 for defendant's phone (Exhibit 4) and J 's phone (Exhibit 3).

Each search warrant affidavit contained both of J 's February 16, 2015 written statements (Exhibits 15 and 16) which were affirmed under the penalty of perjury and the PYPD's Call for Service Sheet dated February 11, 2015 noting McInnis' initial report to the PYPD. J was not under arrest at the time but could not be considered a by-stander to the allegations either.

After the warrants were issued Dunham arranged for forensic downloads to be prepared by Investigator John Abram of the Ontario County Sheriff's Department for each cell phone.

The Pantech Tracfone forensic report for J 's phone was completed on March 20, 2015 and contains a paper print out of what is on the accompanying CD disk (Exhibit 8). The Samsung cellular forensic phone report for defendant's phone was completed on April 7, 2015 and also contains a paper print out of what is on the accompanying CD disk (Exhibit 9).

Dunham filed separate returns, each dated April 8, 2015, for each search warrant, to wit: defendant's Samsung phone (Exhibit 5) and J 's Pantech phone (Exhibit 6) with the issuing magistrate.

Dunham then returned the forensic reports, cell phones and SIM cards to the Penn Yan Village Police Department evidence room. Dunham seized no other physical evidence.

A confession or admission is admissible at trial in this state only if its voluntariness is established by the People beyond a reasonable doubt. People v. Witherspoon, 66 NY2d 973 (1985).

Then, if the prosecutor in the first instance established the legality of the police conduct in obtaining a statement the defendant has the burden of persuasion in seeking suppression. People v Love, 85 AD2d 799 (3rd Dept 1981), affd. 57 NY2d 988 (1982).

In the case at bar, the statements in question were all made to CPS worker McInnis during her several conversation with the defendant while he was incarcerated on an unrelated matter and his right to counsel had already attached.

Therefore, "Whether a CPS case worker conducting a child neglect/abuse investigation is an agent of law enforcement officers conducting a parallel criminal investigation is a fact-sensitive determination." People v Ledbetter, 47 Misc 3d 336, 340 (Co. Ct. Orange Co., 2014).

"Relevant indicia of state involvement, which may transform private conduct into state action include: a clear connection between the police and the private investigation; completion of the private act at the instigation of the police; close supervision of the private conduct by the police; and a private act undertaken on behalf of the police to further a police objective." People [*5]v Ray, 65 NY2d 282 (1985).

In People v Wilhelm, 34 AD3d 40, 45 (3rd Dept 2006), the defendant's right to counsel had "indelibly attached prior to the interview by the CPS caseworkers" after she had been taken into custody and after her arraignment. Thus, she could waive her right to counsel only in the presence of counsel [citing People v Settles, 46 NY2d 154, 165-166 (1978)]. This applies even if the defendant was being held on another criminal matter. People v Lopez, 16 NY3d 375, 377 (2011). Wilhelm continues, "In addition, as defendant asserts, because her right to counsel had attached, any statements obtained through interrogation by agents of the state' must be suppressed (People v Velasquez, 68 NY2d 533, 537)" other cites omitted.

The court in Wilhelm also found relevant that the CPS workers were members of a county-wide multi disciplinary team which included DA's office members, police and social service agencies. The team met regularly to "enhance the prosecutorial process" in criminal proceedings involving child abuse. Id., 46-47.

The court concluded that the caseworkers' conduct constituted state action. "Despite the CPS caseworkers' insistence that their investigation was separate, and that their interview of defendant and cooperation with the District Attorney's office were undertaken solely pursuant to the dictates of the Social Services Law and Family Ct Act, we note that no Family Court proceeding was ever initiated or even contemplated as of the date of the interview." Id., 48.

The court in Wilhelm was also struck by the fact of the multi disciplinary team, and that the supervising caseworker knew before the interview with defendant that she would be testifying for the prosecution before a grand jury. The caseworkers also relayed the defendant's statements to the DA's office after the interview. Thus, the court concluded, the Defendant's right to counsel had been violated.

Nor did the conversations between McInnis and the defendant constitute spontaneous or volunteered utterances [See People v. Lynes, 49 NY2d 286 (1980)] as they were clearly the result of the CPS worker's interviews. See People v. Wilhelm, 34 AD3d 40, 45 (3rd Dept 2006).

In the case at bar, the fact the defendant was in jail, had counsel on unrelated charges (known to Dunham and McInnis), spoke with CPS worker McInnis on four different occasions and McInnis and Dunham spoke before and after these conversations exhibited the relevant indicia of state involvement which transferred private conduct into state action (People v Ray, 65NY2d 282 (1985).

Thus any statements made by the defendant to CPS worker McInnis at the Yates County Public Safety Building on March 4, 5, 9 and 18 of 2015 are suppressed.

All the letters (Exhibits 12, 13 and 14) that defendant had written to J were in J 's possession at her home when Dunham was conducting his investigation. J told Dunham about them and voluntarily handed them over to Dunham on February 16, 2015. Defendant's expectation of privacy had terminated upon J 's receipt of the letters from defendant. People v Howard, 50 NY2d 583, 593 (1980) as they became J s property and defendant had no standing to challenge their admissibility. People v Wesley, 73 NY2d 351, 358-359 (1989).

Likewise, defendant's cell phone and SIM card were in J 's home at the time they were voluntarily handed over to Investigator Dunham. By leaving his phone with J at her home shows that the defendant did not seek to preserve it as private. Moreover, '[s]tanding to [*6]challenge a search is not established by asserting a possessary interest in the goods seized - defendant must assert a privacy interest in the place or items searched.' People v Moorer, 39 Misc 3d 603, 607-608 (Co Ct. New York County 2013).

Once he obtained the defendant's cell phone and SIM card, Dunham applied the proper procedure by seeking a warrant for the search of their contents. People v Weissman, 46 Misc 3d 171 (Crim. Ct. City of NY, Kings Co. 2014) citing Riley v California, 1134 S.Ct. 2473, 189 L. Ed 2d 430, 82 USLW 4558 (2014).

The People have the burden, in the first instance, of going forward to show the legality of the police conduct. People v Malinsky, 15 NY2d 86, 91 (1965). The defendant, however, bears the ultimate burden of proving by a preponderance of the evidence that the physical evidence should be suppressed. People v Alberti, 111 AD2d 860 (2d dept 1985), app. den. 66 NY2d 760 (1985).

In order to determine whether the warrants were proper or not the reviewing Court must look to the four corners of each search warrant application and attachments and what the proceedings were before the issuing magistrate, if any. Here it is clear that no testimony was taken before the issuing magistrate nor are there any notes of the issuing magistrate. The proof shows that Investigator Dunham presented the magistrate with his affidavits for each search warrant including J 's February 16, 2015 statements (Exhibits 15 and 16) affirmed under the penalty of perjury and the PYPD Call for Service Log .

A search warrant applicant must disclose facts providing reasonable cause and must also inform the issuing magistrate of materially contradictory information given by an informant so that the magistrate can make an informed, independent and detached judgment. People v Windrum, 128 Misc 2d 1043 (Co.Ct. Monroe Co. 1985). Here Dunham testified that he returned to J 's house on February 16th because based on his investigation he didn't believe that she had been fully truthful to him the first time they spoke on the 16th. So he wanted to speak with her again. Thus the second statement (Exhibit 16) was drawn up. In the case at bar, even setting aside Exhibit 15, the inclusion of Exhibit 16 was sufficient to establish probable cause to the issuing magistrate. Franks v Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L.Ed. 2d 667 (1978). Furthermore, the existence of probable cause is a determination solely for the magistrate, not the affiant. People v P.J. Video, 68 NY2d 296, 306-307 (1986).

It should be pointed out, however, that because of the preference regarding search warrants the underlying documents that support issuance should be interpreted in a common-sense manner, rather than hypo-technically and may be accorded all reasonable inferences. People v Edwards, 69 NY2d 814 (1987).

In this regard hearsay is admissible at a suppression hearing to establish any material fact. [CPL §710.60(4)]. However, in order to meet its burden, the prosecution must present witnesses with firsthand knowledge of the police conduct. People v Ortiz, 90 NY2d 533, People v. DeFrain, 204 AD2d 1002 (4th Dept 1994). But the prosecution need not call all of its witnesses at the hearing.

At the hearing at bar the People presented copies of each of Dunham's search warrant affidavits (Exhibits 2 and 10) which were sworn to before the judge and to which he testified to their accuracy, his inclusion of copies of J 's sworn statements (Exhibits 15 and 16) in each application and his personally taking those statements on February 16, 2015. Also presented at [*7]the hearing were the originals of the search warrants (Exhibits 3 and 4) and each return (Exhibits 5 and 6) regarding which Dunham testified to the issuance of the warrants and the contents of the returns all from his own knowledge.

The testimony shows that Dunham clearly provided the magistrate with information sufficient to support a reasonable belief that evidence of illegal activity was present.

In order for the People to meet their burden that each warrant was properly obtained in this instance, they must show that each application (affidavit) demonstrated to the issuing judge that the officer had reasonable cause for each such warrant.

This may be accomplished by the police officer applicant's own personal observations, experience and expertise and/or with depositions or affirmations of other persons containing facts supporting the existence of reasonable cause. CPL section 690.35; People v Simon, 107 AD2d 196 (4th Dept 1985), People v Restrepo, 87 AD2d 320, 324 (1st Dept 1982). However, J should not be considered merely a disinterested public spirited citizen in order to determine her reliability, but rather as an identified informer.

Therefore, the so-called Aguilar - Spinelli test [Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 584, 21 L. Ed.2d 637 (1969)] must be used to determine if each search warrant application, specifically J 's statements, provided circumstances to show the issuing magistrate both the underlying basis of her knowledge and her reliability. See People v Wolzer, 41 AD2d 379 (3d Dept 1973).

Here, J 's statements referred to her involvement with the defendant and the subject of the allegations as a potential co-conspirator. Thus, the first element of the test, basis of knowledge of the informant was satisfied.

The reliability of an ordinary citizen whose identity is disclosed is not evaluated under the same standards as that of a paid anonymous informer. People v Coles, 104 Misc 2d 333 (Sup. Co. NY Co 1980). See also People v Crawford, 162 AD2d 1028 (4th Dept 1990), app. den. 76 NY2d 854 (1990), regarding statements from citizen informants as properly considered by the suppression court without the necessity of an independent showing of reliability. Also see, People v Deliz, 172 AD2d 877 (3rd Dept 1991), app. den. 78 NY2d 921 (1991), regarding the Aguilar - Spinelli test not being applicable when the basis of the warrant came from a confidential informant's sworn statement, rather than from hearsay information relayed by a police officer.

Therefore, the information provided to police by a citizen witness whose affidavit is attached to the warrant application will ordinarily be deemed reliable. People v Bakker, 133 AD2d 161 (2d Dept 1987). That informant's reliability need not be proven, it is assumed. People v Rivera, 176 AD2d 446 (1st Dept 1991); People v Simon, 118 Misc 2d 745 (Sup. Ct. Monroe Co. 1983).

However, this same presumption that attaches to a citizen informer who comes forward to provide information is not applicable to an informant.

However, to be considered 'reliable', an informant need not be a disinterested public-spirited citizen. People v Rodriquez, 52 NY2d 483, 489 (1981). And the informant's truthfulness can be corroborated in a number of ways including by sworn affidavit. People v Hicks, 38 NY2d 90 (1975).

Therefore, since J may have been directly involved as a possible co-conspirator her [*8]statements must be given closer scrutiny under Aquilar v Spinelli.

Regarding reliability, each of J 's signed statements (Exhibits 15 and 16) contained a printed warning that making a written false statement could be punishable as a misdemeanor. It has been held that such a statement, in this context, is the equivalent of an oath or affirmation and may be relied upon by a magistrate when determining probable cause . People v Hicks, supra, People v Brody, 107 AD2d 939 (3d Dept 1985). In addition, J 's statements were against her own penal interest which also goes to the issue of her reliability. People v Lanier, 54 NY2d 725 (1981); People v Bartolomeo, 53 NY2d 225 (1981); People v Benjamin, 150 AD2d 952 (3d Dept 1989) People v Wolzer, supra; People v Barcia, 37 AD2d 612 (2d Dept 1971), appeal dismissed, 30 NY2d 873 (1972); People v Galimulla, 155 Misc 2d 3 (Sup. Ct. Suffolk Co. 1992).

For example, in Wolzer, 41 AD2d 379 (3d Dept 1973) involving an informant drug user who had purchased drugs from the defendant, the Court stated:

People do not lightly admit a crime and place critical evidence in the hands of the police in the form of their own admissions. Admissions of crime, like admissions against proprietary interests, carry their own indicia of credibility sufficient at least to support a finding of probable cause to search. (Id.)

J 's involvement makes her less than an unbiased citizen informer. However, she signed statements affirmed under the penalty of perjury so it would not have been to her advantage to lie. And J also implicated herself in wrong doing which was an admission against her penal interest. Thus her reliability was established even when setting aside J 's first written statement (Exhibit 15).

It is clear, after examining each warrant application and accompanying documents, that each sufficiently established the reliability of the allegations and allowed the magistrate to determine the presence of probable cause even if J 's first statement (Exhibit 15) is set aside in the analysis.

Therefore, based on the record, the Court finds that the People have sustained their burden in showing the legality of the police conduct in the first instance in that the cell phones and SIM cards were properly given to Dunham by J and each search warrant was properly issued and the seized contents thereof (Exhibits 8 and 9) are ruled admissible. People v Berrios, 28 NY2d 361 (1971).

The letters (Exhibits 12, 13 and 14) written by the defendant to and received by J and then voluntarily given to Investigator Dunham by her, are admissible at trial. While the copies of defendant's letters (Exhibit 11) given to McInnis when defendant was in jail are suppressed as poison fruit because they were procured as a result of improper conversations between defendant and McInnis while defendant was incarcerated as more fully set forth herein.

The defendant at the time the CPS worker talked with him was already in custody for a different matter and he had counsel for that charge.

The defendant was not arrested for the charges herein until April 20, 2015 and he was not indicted on them until September 10, 2015. This application is moot given the Court's ruling suppressing the defendant's March 4, 5, 9 and 18, 2015 statements to the CPS worker and the letters contained in Exhibit 11.

The foregoing constitutes the Opinion, Decision and Judgment of the Court