        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

978
KA 16-00854
PRESENT: WHALEN, P.J., PERADOTTO, NEMOYER, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

                    V                             MEMORANDUM AND ORDER

RICHARD A. RODAS, JR., DEFENDANT-RESPONDENT.


VALERIE G. GARDNER, DISTRICT ATTORNEY, PENN YAN (DAVID G. MASHEWSKE OF
COUNSEL), FOR APPELLANT.

TIFFANY M. SORGEN, CANANDAIGUA, FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Yates County Court (W. Patrick
Falvey, J.), dated April 7, 2016. The order, among other things,
granted the motion of defendant to suppress certain statements.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed and the indictment is dismissed.

     Memorandum: In this criminal action arising from defendant’s
alleged conspiracy with his girlfriend to sexually abuse the
girlfriend’s daughter, the People appeal pursuant to CPL 450.20 (8)
from an order granting defendant’s motion to suppress statements that
he made, as well as letters that he gave, to a Yates County Department
of Social Services child protective caseworker during a series of
interviews conducted at the Yates County Jail, where defendant was in
custody on an unrelated charge on which he was represented by counsel.
At the outset, we note that the “factual findings and credibility
determinations of a hearing court are entitled to great deference on
appeal, and will not be disturbed unless clearly unsupported by the
record” (People v Collier, 35 AD3d 628, 629, lv denied 8 NY3d 879,
reconsideration denied 9 NY3d 841; see People v Hogan, 136 AD3d 1399,
1400, lv denied 27 NY3d 1070). Likewise, “in the event the proof
permits the drawing of conflicting inferences, the choice is for the
[hearing court] and should be upheld unless unsupported by the
evidence” (People v Davis, 221 AD2d 358, 359, lv denied 87 NY2d 920
[internal quotation marks omitted]).

     Here, we conclude that County Court properly determined that the
caseworker obtained the statements and letters in violation of
defendant’s right to counsel (see generally People v Lopez, 16 NY3d
375, 380), inasmuch as there was such a degree of investigatory
cooperation between the caseworker and a Village of Penn Yan police
investigator that the caseworker acted as the agent of the police in
questioning defendant and obtaining the letters from him outside the
                                 -2-                           978
                                                         KA 16-00854

presence of defense counsel (see People v Wilhelm, 34 AD3d 40, 46-50;
People v Greene, 306 AD2d 639, 640-641, lv denied 100 NY2d 594; see
generally People v Rodriguez, 135 AD3d 1181, 1184-1185, lv denied 28
NY3d 936). In the weeks before the caseworker’s interviews with
defendant, she and the investigator communicated at least four times
and kept each other closely apprised of their respective investigatory
findings. Right before the caseworker first interviewed defendant,
she called the investigator again to let him know what she was doing
and to ask him to accompany her to the jail. The investigator
informed the caseworker that he could not do so because defendant was
represented by counsel on the unrelated charge and had told the
investigator that defendant would not speak to him in the absence of
counsel. Although both the investigator and the caseworker testified
at the suppression hearing that the investigator did not give the
caseworker instructions or directions before she interviewed
defendant, the caseworker also testified that the investigator
specifically asked her not to “focus on” certain letters that might be
possessed by defendant at the jail, to avoid defendant’s destruction
of those letters before the investigator could obtain a warrant for
their seizure. Additionally, during the interviews, the caseworker
told defendant that she was “working together” with “law enforcement”
and would be “sharing” with the police any information that she
obtained from him (see Greene, 306 AD2d at 641; see generally Wilhelm,
34 AD3d at 47-48).

     Moreover, after the caseworker interviewed defendant, she briefed
the investigator on the substance of defendant’s statements and turned
over copies of the letters that she had obtained from defendant (see
Wilhelm, 34 AD3d at 47-48). In turn, the investigator allowed the
caseworker to read and make copies of letters that he had acquired
from defendant’s girlfriend. The caseworker further shared with the
investigator other information that she had learned during the
investigation, including the location of yet another set of letters.
We thus conclude that defendant’s right to counsel, the nature and
effect of which the caseworker specifically had been apprised before
she interviewed defendant (cf. id. at 49), was circumvented because
the caseworker was acting as an agent of the police at the time that
she interviewed defendant (see id. at 48-49; Greene, 306 AD2d at 641).
In light of our determination, the indictment must be dismissed
because “ ‘the unsuccessful appeal by the People precludes all further
prosecution of defendant for the charges contained in the accusatory
instrument’ ” (People v Moxley, 137 AD3d 1655, 1656-1657).




Entered:   December 23, 2016                   Frances E. Cafarell
                                               Clerk of the Court
