The degree of cooperation between Batavia Police investigators and New York State parole officers during the investigation into an alleged arson last year could determine what evidence can be used at trial against Andre Scott, accused of attempted murder.
In a hearing that was broken up over three different sessions in a three-week span, defense attorney Thomas Burns probed whether state parole officers based in Rochester merely did what they were supposed to do in supervising Scott, or collaborated with Batavia investigators to obtain evidence improperly.
The 6' 8" Scott, who appeared in court Thursday sporting a big, ill-kept '70s style Afro, is charged with arson, attempted murder and burglary. He is in jail awaiting trial.
Burns focused most of his questioning of Det. Chuck Dudek and Parole Officer Chris Van Schaick on when and how Batavia police obtained custody of Scott's mobile phones, the reason and nature of parole officers obtaining a saliva-based drug test and whether Batavia officers incorrectly participated in a search of either Scott's car or his home.
Since Scott was on parole -- starting in 2007 on a unlawful possession of a weapon conviction -- Scott is required to comply with search requests and submit to drug and alcohol tests from parole officers. He isn't required to be as cooperative with agents of other law enforcement units.
Scott is accused of trying to set fire to an apartment in Batavia on Jan. 24, 2009. Batavia investigators quickly identified Scott as a suspect and went to Rochester in an attempt to question him. When they failed to make contact, they called Van Schaick and asked for his help in locating Scott.
After an initial meeting at the parole office in Rochester, two Batavia detectives and three parole officers staked out Scott's apartment.
Scott, who had a 9 p.m. curfew, arrived at the complex at 8:50 p.m., but parked in a lot next door to his complex.
The Batavia detectives, along with a parole officer, stopped Scott and the parole officer immediately handcuffed him, apparently, because of a concern that he might be carrying a weapon.
Parole officers then searched Scott's car and obtained one of his cell phones.
At Thursday's portion of the hearing, Scott took the stand, and said Dudek asked to search his car and Scott said no. Dudek then obtained a key from one of the parole officers and attempted to open the car. After the car was finally opened, Dudek removed Scott's mobile phone and then began pushing buttons -- which Scott said he knew, because he hadn't had time to terminate his previous phone call and his Bluetooth ear piece was still activated.
Dudek denied that sequence of events. He said Det. Patrick Corona accidentally locked Scott's car after Scott was in custody, felt it was his mistake and asked Dudek to help get the car unlocked again. But once it was unlocked, Dudek said he returned to the vehicle where Scott was being held and took no part in the search, except to help remove the spare tire.
Once back at the parole office, Scott was asked to submit to an alcohol screening and drug test.
Scott admitted on the stand Thursday that he had been drinking on Jan. 25, in violation of his parole terms. He also said that during his nearly two years on parole he had been asked to submit to drug tests about 20 times. Each time, he said, the test was a urine sample.
This time, Scott was asked to submit to a mouth swab.
Prior to the alcohol screening, Van Schaick said during his testimony on Thursday that Dudek asked for the mouth swab after the screening.
Van Schaick said he asked Dudek, "You're looking for DNA?" Dudek said he was. "This," Van Schaick said, meaning the mouth swab, "would be better than the tube."
Dudek's version of that exchange didn't include an explicit mention of a search for a DNA sample.
At the end of the hearing Thursday, Judge Robert Noonan, during the process of selecting a trial date, said to District Attorney Lawrence Friedman, "Based on the evidence I've heard, I gather that if the defense wins its motion, it would not be terminal to the prosecution?"
Friedman agreed it would not be terminal to his case against Scott.
Noonan won't rule on the defense motion to suppress the disputed evidence until after receiving written briefs from both the defense and the prosecution.
A trial date was set for Aug. 23, with a provision that if a week (the trial could take up to five days) opens on the court calendar before then, the trial date would be moved up.
Scott has until June 30 to accept any potential plea agreement, otherwise the case will go to trial.
I praise all the law
I praise all the law enforcement officers involved for cooperating in an effort to keep our communities safe. Although Rochester is pretty much a lost cause, Batavia will come out on top due to their efforts.
Sorry, but I don't put much credence in this thug's statements.