The Defendant is a former Auburn Police Department (“APD”) school resource officer (“SRO”) who is alleged to have engaged in an illicit sexual relationship with a 14-year-old student (“S.H.”) during the course of his duties as an SRO. The Defendant is charged with one count of Sexual Abuse in the First Degree, one count of Disseminating Indecent Material to Minors in the First Degree as a sexually motivated felony, one count of Official Misconduct, and one count of Endangering the Welfare of a Child. I. MOTION TO DISMISS DUE TO THE EXISTENCE OF A LEGAL IMPEDIMENT TO CONVICTION The Defendant moves pursuant to CPL §210.20(1)(h) to dismiss the indictment because “there [is] a legal impediment to conviction of the defendant for the offense charged” (CPL §210.20[1][h]). Specifically, the Defendant argues that his “prosecution has been procured in violation of his New York and Federal Constitutional rights as recognized in Garrity v. New Jersey, 385 U.S. 493 (1967) and People v. Corrigan, 80 NY2d 326 (1992)” (Defendant’s Affirmation in Support at 2). The Defendant argues this prosecution was “the product” of compelled statements that he was forced to give during a “Garrity interview” as a condition of continued employment. The People responded to the motion by conceding that the statements at issue are immunized and therefore inadmissible. However, the People argued dismissal is improper because: (1) the Cayuga County Sheriff’s Office (“CCSO”), not the Auburn Police Department, conducted the criminal investigation, (2) the prosecutor who presented the case in grand jury was not aware of the immunized statements when she presented the case to the grand jury, and she did not present the immunized statements to the grand jury, (3) the lead investigator (Lt. Cornelius) and all of CCSO was not aware of the immunized statements when they conducted their investigation, and (4) the immunized statements were not used in grand jury. In support of their opposition, the People submitted two sworn affidavits: one by the Prosecutor on this matter, Heather Destefano, Esq., and the other by the primary CCSO investigator on this matter, Frederick E. Cornelius. After oral argument, this Court granted a Garrity hearing, primarily to ascertain whether this prosecution was the result of the use of any derivative fruits of the Defendant’s compelled statements. Over the course of two days of testimony, the People called five witnesses: (1) APD Deputy Chief Roger Anthony, (2) APD Captain Mark Schattinger, (3) APD Lt. Matthew Androsko, (4) APD Sgt. Christine Gilfus, and (5) CCSO Lt. Fred Cornelius. The Defendant did not call any witnesses at the hearing. At the close of proof, the Court requested written memoranda from the attorneys addressing two questions: first, whether there was a Garrity violation, and second, if so, what is the appropriate remedy? The Court has considered all the parties’ written submissions, exhibits, and witness testimony. The Court makes the following findings of fact and conclusions of law: a. Facts On Monday February 28, 2022, the Defendant’s employers1 received an anonymous letter (Defendant’s Exhibit A) alleging an illicit relationship between the Defendant and S.H. In relevant part, the letter alleged the following: The Defendant and S.H. communicated through Snapchat; S.H. spent an inordinate amount of time in the Defendant’s office; The Defendant used his personal truck to drive S.H. to and from the school and school events and was seen with her in the car at various locations around Auburn; The Defendant gave S.H. a necklace and put it on her neck. The morning of Tuesday March 1, 2022, APD Deputy Chief Anthony learned about the anonymous letter. Additionally, APD Chief Slayton showed APD Sgt. Gilfus a copy of the letter and requested that Gilfus review the school surveillance videos. Gilfus found school surveillance videos corroborating some of the allegations in the letter, specifically that S.H. was being transported to and from the school by the Defendant. Slayton and Anthony then directed Gilfus to interview S.H. Gilfus responded to S.H.’s school and interviewed S.H. for the first time. Gilfus wrote the contents of the interview in a written statement, which S.H. signed (Defendant’s Exhibit C). S.H. denied any relationship with the Defendant beyond that of “student and SRO” (Defendant’s Exhibit C, S.H. Written Statement). However, she did disclose that the Defendant gave her a ride home2 in his personal vehicle after school activities approximately 2-3 times (id.). Gilfus testified that S.H. denied ever receiving any gifts from the Defendant. While Gilfus was interviewing S.H., APD Captain Mark Schattinger conducted a preliminary interview of the Defendant at APD headquarters. In that conversation, the Defendant denied having any personal or familial relationship to S.H., claimed to have never had contact with her outside of the school, and denied giving her any rides. After communicating with his superiors, Schattinger transported the Defendant to City Hall for the Defendant’s employers3 to conduct a full interview. Prior to beginning that interview, the Defendant was given his Garrity warnings, which advised him that failure to truthfully answer questions could result in termination of his employment (Defendant’s Exhibit B). During that compelled interview, the Defendant disclosed: “[T]hat he had given the student rides in his personal vehicle from school” (Defendant’s Exhibit D) and in his marked police vehicle, That “he communicated with the student via text, Snapchat and Facetime” (id.), and That he had given her a pair of Air Jordan basketball sneakers” as a birthday gift (id.). Sometime later in the same day, Gilfus spoke to Deputy Chief Anthony and briefed him on the results of her interview with S.H. Gilfus told Anthony that S.H. did not admit to anything that would suggest there was an inappropriate relationship. The next day, on March 2, 2022, Anthony assigned APD Lt. Androsko to continue the investigation by interviewing S.H. a second time. Anthony directed Androsko to follow-up because there were “additional details” in the anonymous letter that were omitted from S.H.’s first interview, and Anthony wanted Androsko to explore those omissions. Anthony testified that he met with Androsko, gave Androsko a copy of the anonymous letter, asked him to follow up with S.H., and asked Androsko to “delve into the cell phone aspect.” Anthony did not tell Androsko anything regarding what the Defendant said at the Garrity interview. Androsko went to S.H.’s residence and interviewed her a second time. During the second interview, S.H. reiterated what she told Gilfus in the first interview — the Defendant had given her rides. During this interview, S.H. also admitted that she and the Defendant communicated via SnapChat, and she said they were “only friends” (People’s Exhibit 2, Androsko Affidavit).She also disclosed for the first time that the Defendant gave her a pair of Air Jordan basketball sneakers. Androsko testified that, at the time he asked S.H. about the sneakers, he did not know that the Defendant made statements in the Garrity interview about giving S.H. Air Jordan sneakers. Androsko testified he sua sponte asked S.H. if she received any gifts from the Defendant, and he specifically asked about Air Jordan sneakers because he knew she was a basketball player and “assumed she was into Jordans” because they are popular with kids her age who play basketball. He testified that S.H. voluntarily disclosed that the Defendant gave her Air Jordan sneakers. Androsko returned to APD headquarters and briefed Chief Slayton and Deputy Chief Anthony on his findings, including showing them the sneakers given to him by S.H. (id.). Lt. Androsko photographed the sneakers so they could be returned to S.H. (id.). After learning the outcome of Androsko’s interview with S.H., Anthony directed a third interview of S.H. to be conducted by Anthony and Androsko. They both conducted that interview at APD headquarters in a conference room with S.H.’s grandmother present (People’s Exhibit 3, Audio Recording of 3/3/22 Interview with S.H.). According to Androsko, this reinterview occurred because Androsko “felt she was telling half-truths,” and he thought that she might be more forthcoming if reinterviewed. During this third interview, S.H. disclosed for the first time the physical and sexual nature of their relationship (People’s Exhibit 2, Androsko Affidavit). She reiterated her prior reports that the Defendant communicated with her via apps on her cell phone. She also disclosed that she picked out the sneakers on the Defendant’s computer in his office at the school (id.). The Court reviewed the audio recording of this interview. While Anthony was certainly aware of the contents of the Garrity interview, at no point in the interview did he use any information obtained during the Garrity interview to elicit statements from S.H. While this interview occurred, another APD officer conducted an extraction of the two phones Androsko collected from S.H. earlier that day. That evening, Anthony contacted CCSO Detective Sergeant Franklin and asked if CCSO would be willing to take over the criminal investigation. Afterwards, Franklin contacted CCSO Lt. Cornelius and informed Cornelius of Anthony’s request. Franklin told Cornelius that there was an internal investigation being conducted by APD, but Cornelius testified that he “cautioned Sgt. Franklin about receiving any information” regarding that part of the investigation because he knew the two investigations needed to be compartmentalized. A multi-agency meeting was scheduled for the next morning to discuss this case. The morning of March 3, 2022, a multi-agency meeting occurred at CCSO. CCSO Lt. Cornelius, CCSO Detective Sergeant Franklin, CCSO Detective Stuart, the Sheriff, the Undersheriff, APD Chief Slayton, APD Deputy Chief Anthony, APD Lieutenant Androsko, APD Sgt. Gilfus, the current primary prosecutor on this case, Senior ADA Heather Destefano, and possibly two other prosecutors from the District Attorney’s Office attended the meeting. At the beginning of the meeting, Cornelius directed everyone that they needed “to compartmentalize the investigations” and that “they couldn’t tell us anything about the disciplinary interview of Morrissey.” Cornelius testified that no one divulged the contents of the Garrity interview to him, and he did not review any of the written documents regarding the Garrity interview. Androsko testified that at that meeting “we debriefed them [CCSO] on what I found from the victim, and we turned over what I had and what I recovered from the victim, and I advised them of my findings thus far.” At that time, Androsko was still unaware of the contents of the Garrity interview. Cornelius was the lead investigator of this case for CCSO. He testified that he specializes in, and has extensive training regarding, the investigation of allegations of child sexual abuse. He testified that he has conducted hundreds of child abuse investigations, and he conducted this investigation exactly how he would any child abuse case. He said that all the evidence he obtained was a result of the regular procedures he always employs on child abuse investigations. Later in the day on March 3rd, Cornelius began investigating this case on behalf of CCSO. He forensically interviewed S.H. and conducted a voluntary controlled call between the Defendant and S.H. (People’s Exhibit 4, Controlled Call). During the interview, S.H. disclosed having a relationship with the Defendant that involved kissing and touching each other’s intimate parts. None of the information from the Garrity interview was used during the controlled call. S.H. did not read from any script during the controlled call, and she independently chose what to say to the Defendant. On March 9, 2022, Cornelius re-interviewed S.H., and she disclosed that some of the electronic communications that occurred between herself and the Defendant were sexually explicit (People’s Exhibit 5, Recording of 3/9/22 Interview with S.H.). Cornelius reiterated in his testimony that, prior to this interview of S.H., he did not know anything about the contents of the Defendant’s Garrity interview. The Court reviewed the grand jury minutes in this case. There was no reference — either direct or indirect — to the Defendant’s Garrity interview or its contents. Similarly, there was no reference to the Air Jordan sneakers. b. Discussion The Defendant moved to dismiss this indictment pursuant to CPL §210.20(1)(h) because “there [is] a legal impediment to conviction of the defendant” (CPL §210.20[1][h]). This subsection is a “catchall provision” that “empowers a court to dismiss an indictment when ‘there exists some other jurisdictional or legal impediment to conviction of the defendant for the offense charged’” (People v. Alonso, 16 NY3d 581, 585 [2011]). Unlike a dismissal for other some other subsections of CPL §210.20, such as for defective grand jury proceedings (§210.20[1][c]), dismissal of an indictment pursuant to subparagraph 210.20(1)(h) precludes re-presentation of the matter to another grand jury, and it bars “any further prosecution of such…charges…in any criminal court” (CPL §210.20[4]). While there is no statutory or jurisprudential definition of “legal impediment,” it has been found: Where there is an absence of a valid and sufficient accusatory instrument, such as when the People impermissibly re-presented charges to a second grand jury when those same charges were already contained in a preexisting indictment (People v. Franco, 86 NY2d 493 [1995]; see also People v. Greco, 230 AD2d 23 [4th Dept. 1997]); Where a defendant is charged with possession of illegal narcotics, but a formal laboratory test yields a negative result for the presence of cocaine, and there is no other evidence of possession of a controlled substance (People v. Swamp, 84 NY2d 725 [1995]); Where there is a Brady violation so severe that “it would be impossible for the defendants to receive a fair trial” (Alonso at 585). Conversely, the Fourth Department has held that a “legal impediment” did not exist where the People were precluded from introducing some evidence, which “diminished the quantum of proof against defendant,” but “did not negate any elements of the charged crimes” (People v. Hardy, 241 AD2d 919, 920 [4th Dept. 1997]; see also People v. Gordon, 214 AD2d 1029, 1029 [4th Dept. 1995], aff’d, 88 NY2d 92 [1996] ["although the People's case is weakened without identification testimony, there is no legal impediment to conviction"]). In People v. Grafton, the Fourth Department held that it was error for the trial court to dismiss an indictment pursuant to CPL §210.20(1)(h) when the prosecutor engaged in “deplorable” misconduct while presenting the case to the grand jury (People v. Grafton, 115 AD2d 952, 952-53 [4th Dept. 1985]). That court held that the dismissal pursuant to subparagraph (1)(h) was significant because, “had the court founded its dismissal on [CPL §210.20(1)(c) instead], it could, in the exercise of its discretion, have authorized the People to resubmit the charges to another grand jury” (id.). The Court held that such an outcome would have been appropriate in that case “given the seriousness of the charges (rape in the first degree and assault in the first degree) and the fact that the crime committed was particularly atrocious” (id.). In another case where the 210.20(1)(h) motion was based on allegations that the People used impermissible evidence in violation of the attorney-client privilege, the Court of Appeals found that dismissal was not proper because it could not be shown that, inter alia, “the prosecution could or would necessarily avail itself of the illegal evidence directly or indirectly by way of strategy, or tactics, which it could not have but for the unlawful” conduct (see People v. Pobliner, 32 NY2d 356 [1973]). In the context of Garrity interviews, it is well-established that “[a] statement made under threat of dismissal is protected by the privilege against self-incrimination and automatically immunized from use in criminal proceedings” (People v. Corrigan, 80 NY2d 326, 329 [1992]). Thus, coerced statements may not be used in “subsequent criminal proceedings” (Garrity at 500). That immunity extends to any fruits of the immunized statements: “The immunity attaching to a compelled statement bars the People from using in any way the statement itself or any evidence derived directly or indirectly from it” (id.; see also Kemp v. Lynch, 275 AD2d 1024, 1025 [4th Dept. 2000] [immunized "statements and derivative evidence may not be used by the District Attorney against the police officer in a criminal proceeding"]). “Neither the substance of the statement nor anything derived from that statement (such as the existence of other evidence or the identity of witnesses) may be used” (People v. Feerick, 241 AD2d 126 [1st Dept. 1998], aff’d 93 NY2d 433 [1999]). Once “the People are made aware of the fact that a defendant has made an immunized statement, the People bear the burden of establishing that any evidence used was derived from a source wholly independent of the statement. Where the People have submitted evidence obtained directly or indirectly from use of an immunized statement, the charge may be sustained only if supported by admissible evidence derived from an independent source” (Corrigan at 329). The People have an “affirmative duty to prove that the evidence was…derived from a legitimate source wholly independent of the compelled testimony” (Kastigar v. United States, 406 U.S. 441, 460 [1972] [emphasis added]; Corrigan at 329). Thus, the burden of proof is upon the People, and the standard of proof is “a fair preponderance of the credible evidence…the existence of an independent source” (People v. Kronberg, 243 AD2d 132, 148 [1st Dept. 1998], lv. den. 92 NY2d 880 [1998]). The question at a Kastigar hearing is “whether the prosecution has made any use whatsoever of a defendant’s immunized testimony, not whether it had access to it” (People v. Feerick, 241 AD2d 126 [1st Dept. 1998] [emphasis in original], aff’d 93 NY2d 433 [1999]). An indictment will not be deemed to be “fatally tainted merely because someone involved in the criminal prosecution may have been exposed to a portion or all of a defendant’s immunized statement” (Feerick at 135). Unlike most of the existing Garrity jurisprudence, since the clarification of the record at the hearing, the Defendant in this case has not pointed to particular evidence, witnesses, or facts which are derivative “fruit of the poisonous tree” obtained only as a result of his Garrity interview. Instead, the Defendant’s argument post-hearing is: “If, rather than giving his Garrity interview, Ofc. Morrissey had instead declined to be interviewed, it is clear that the matter would have ended there…. the information disclosed by Ofc. Morrissey in the Garrity interview was the sole impetus for continuing the investigation” (Defendant’s Post-Hearing Memorandum at 3 [emphasis in original]). In other words, the Defendant argues the investigation into his alleged misconduct would have stopped immediately after the Garrity interview if the Defendant had simply invoked the right to remain silent. This premise is speculative and unsupported by the record. The grand jury minutes establish that the Defendant’s immunized statements themselves were not used either directly or indirectly. Thus, the only question is whether any derivative fruit of those statements was used, and, if so, whether that constitutes a legal impediment to conviction within the meaning of CPL §201.20(1)(h). To answer that question, the Court must examine each admission made by the Defendant in his Garrity interview and track how, if at all, that admission was used to obtain this indictment. The hearing proof established that the Defendant made three substantive admissions during his Garrity interview: (1) that he gave S.H. rides from school, (2), that he communicated with her electronically on the cell phone, (3) and that he gave her a pair of Air Jordan basketball sneakers. The record demonstrates that there was an independent source, totally severed from the Defendant’s Garrity interview, for all three of those facts. First, there are independent sources that the Defendant gave S.H. rides. This claim appeared in the anonymous letter that triggered the entire investigation, and investigators immediately confirmed the allegation by reviewing the school’s surveillance videos. Additionally, S.H. disclosed this fact during her first interview, which occurred simultaneous to, and completely separated from, the Defendant’s Garrity interview. In his first, pre-Garrity interview by Captain Schattinger, the Defendant wholly denied ever giving any rides to S.H.. Thus, police obtained all of this information totally separate and apart from the Defendant’s Garrity interview, and this evidence was not a derivative fruit of the Defendant’s Garrity interview. Second, there are independent sources that the Defendant communicated with S.H. electronically via the cell phone. Again, the anonymous letter alleged that they communicated via SnapChat. At the time of the second interview of S.H., Androsko was aware that surveillance footage corroborated one of the three core allegations in the letter — that the Defendant gave S.H. rides. Armed with the letter and knowledge that there was corroboration of one of the allegations contained in the letter, Androsko, completely uninformed of the Defendant’s Garrity interview, conducted the second interview of S.H.. In that interview, he inquired into the other core allegations from the letter: that there were communications between S.H. and Defendant over cell phones. The responses by S.H. prompted Androsko to collect two cell phones from her and to direct another officer to extract the information from those phones. Thus, there are independent sources for the cell phone communications, and this evidence was not a derivative fruit of the Defendant’s Garrity interview. Third, there are independent sources that the Defendant gave S.H. Air Jordan sneakers. While it is highly coincidental that Androsko sua sponte asked S.H. about the exact type of shoes that the Defendant admitted to giving her in his Garrity meeting, the Court closely observed Androsko’s hearing testimony and credits his explanation that this overlap was the result of his experience as an investigator, his familiarity with the trends and tastes of teenage basketball players, and his good faith questioning of S.H. The anonymous letter referenced the Defendant giving S.H. gifts, and it is therefore not unreasonable that Androsko would ask S.H. about potential gifts beyond necklaces that she might have received from the Defendant. Additionally, there was testimony that gift-giving by a perpetrator is a common aspect of child abuse investigations because it is a common part of grooming behavior, a feature Androsko was aware of given his training and experience. Even if, for the sake of argument, the discovery of the Air Jordan’s was a result of the Defendant’s Garrity interview, it makes no difference because there was no mention of the sneakers during the grand jury presentation, and it appears that the sneakers had no role whatsoever in the People obtaining this indictment. At any rate, the sneakers merely corroborate the existence of some kind of relationship between the Defendant and S.H., and they are not direct evidence or contraband. And even if the Court was to suppress the sneakers, the unavailability of this evidence would not create a legal impediment to a conviction given the other admissible evidence. The Court does not agree that the Defendant’s Garrity interview was the “sole impetus” for continuing the investigation. The anonymous letter included three core allegations, one of which was the Defendant was giving S.H. rides in his car. This allegation was almost immediately corroborated in school surveillance video which police obtained and review before the Garrity interview. Moreover, simultaneous to the Defendant’s Garrity interview, S.H. confirmed that the Defendant gave her rides. In the Defendant’s pre-Garrity interview, he denied the same. The mere conflict between these facts alone could reasonably have prompted further investigation regardless of whether there was a Garrity interview at all. Additionally, the Defendant’s Garrity statements were not particularly remarkable or otherwise valuable from an investigative or charging standpoint. At his interview, the Defendant never admitted to engaging in physical contact with S.H., much less engaging in conduct that could in any way be considered criminal. Allegations of sexual contact emerged organically and independently of the Defendant’s Garrity interview during Androsko and Anthony’s third interview of S.H. Similarly, the allegations of the Defendant sending sexually explicit communications to her via the cell phone did not emerge until after CCSO took over their investigation, which was wholly separate and independent from the Defendant’s Garrity interview. For the foregoing reasons, the Court is not persuaded that the entire investigation after the Garrity interview is a derivative fruit of the Defendant’s immunized statements. Thus, the Court finds that the People have met their burden of proving by a fair preponderance of the credible evidence that there were independent sources for all the proof from the Defendant’s Garrity interview, and there was no improper use of the Defendant’s Garrity statements during the course of the investigation. Having reviewed the grand jury proceedings, the Court finds that there is no legal impediment to conviction within the meaning of CPL §210.20(1)(h). Other than arguing that the entire investigation is an illegal fruit of immunized statements, the Defendant did not make any other argument of how there is a legal impediment to conviction in this matter. Because the Court does not agree with that premise, there is no legal impediment to a conviction in this matter. This is not a situation where the Court has issued a decision suppressing or precluding the People’s only proof. Here, the primary source of proof of criminal behavior is the testimony of S.H., which is entirely separate from, and untainted by, the Defendant’s Garrity interview. As such, this branch of the Defendant’s motion to dismiss is denied. II. MOTION TO INSPECT GRAND JURY MINUTES Pursuant to CPL 210.20, 210.30 and 210.35, the Defendant moved for inspection of the grand jury minutes and dismissal of the indictment herein based on, inter alia, a lack of legally sufficient evidence, improper instructions to the grand jury, and defective grand jury proceedings. The Court has reviewed the grand jury minutes and concludes that the evidence was legally sufficient to support the charges, and the grand jury was properly instructed. The Court finds there were no legal defects that impact the validity of the indictment. However, the Court is compelled to, yet again,4 give this same prosecutor who presented the case to the grand jury case a cautionary warning about how she presents cases to the grand jury and her ethical obligations before the grand jury (see People v. Huston, 88 NY2d 400 [NY 1976]; People v. Batashure, 75 NY2d 306 [1990] [grand jurors, not prosecutors or witnesses, decide sufficiency of the evidence]). During this grand jury presentation, a Cayuga County Sheriff’s investigator testified while playing the school video surveillance footage. The prosecutor elicited lengthy, open-ended testimony wherein the witness narrated and editorialized the events depicted in the videos. Instead of giving any limiting or corrective instructions to the witness or the grand jurors, the prosecutor encouraged the officer to continue. It was improper for the prosecutor to permit the investigator to “provide the [grand] jury with an open-ended narration or explanation of the events depicted in the video” (Hotaling v. Carter, 137 AD3d 1661, 1662 [2016]). Nevertheless, given the other proof presented to the grand jury, the Court finds that there was more than sufficient admissible evidence to support the indictment, and therefore any error in the manner of presentation did not render the proceedings defective (see People v. Huston, 88 NY2d 400, 409 [1996]). The Defendant did not argue the Garrity issue as a reason for dismissal on any basis other than CPL §210.20(1)(h). Even if this Court were to construe the Defendant’s papers as a motion to dismiss for defective proceedings on the basis the improper introduction of Garrity evidence to the grand jury, the Defendant is still not entitled to dismissal. As discussed above, the Court has already found that no direct or derivative fruits of his Garrity interview were the basis of this prosecution, and there was an independent source for all evidence that was presented to the grand jury. Accordingly, the Court does not find a proper basis upon which to dismiss or reduce the indictment, and the Defendant’s remaining motions regarding the grand jury minutes are hereby denied. Therefore, it is ORDERED that the Defendant’s motion for dismissal or reduction of the indictment is denied in all respects. The above constitutes the Decision and Order of this Court. Dated: May 30, 2023
