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Detective explains why man accused of making sex tape not immediately sent to jail

By Howard B. Owens

A Le Roy man accused of making at least one sexually explicit video involving a minor isn't being held in jail because of the case's individual circumstances, said the Le Roy Police Department detective who made the arrest.

Det. John Condidorio said it was his recommendation that Stephen M. Smith be released to the supervision of Genesee Justice following his arraignment in Le Roy Town Court on charges of possessing a sexual performance by a child, promoting sexual performance of a child and use of a child in a sexual performance.

The detective said such decisions are rendered on a singular basis and the law.

"Each case needs to be looked at individually and it's totally (up to) the police department, the district attorney's office and the courts," Condidorio said.

It is the "looking at the totality of the case" that explains, Condidorio said, why Smith's case wasn't referred to federal authorities, and why supervision by Genesee Justice while the charges are pending fits the circumstances.

Smith, however, may yet face statutory rape charges once State Police detectives complete their own investigation.

The video, or videos, allegedly involving a minor from Le Roy, were not made in the Village of Le Roy. Condidorio jurisdiction is confined to the village.

Meanwhile, a person who has identified herself as Smith's girlfriend, who is also the minor child who may have been involved in the videos, has left comments on Facebook and sent an e-mail to The Batavian defending Smith.

The girl said Smith is embarrassed by the charges and upset by reading accounts of the case in the media.

She said she's known Smith since 2006 and they've been involved in a relationship since Aug. 24, 2008. She said he is the father of her 8-month-old child.

"I'm writing because I am concerned with what was stated in the posts about Stephen's charges," the girl wrote. "I fully understand that what I have to say most likely won't matter to anyone because people will judge him because of this no matter what is said or isn't said. That is fine, because anyone that KNOWS him on a personal level, knows that he is not some sick predator."

The girl writes that Smith used a camera that had been given to her as a present and indicates that making the video or videos was her idea.

She said she left the camera at Smith's residence unintentionally and it was seized when detectives searched the place.

"I had Stephen call the day after they confiscated our things and informed them that there was going to be inappropriate content on my camera," she wrote.

Condidorio said he couldn't discuss the content of the girl's Facebook post or even confirm that the victim was female.

He said he was prohibited from discussing the case in detail and could only talk in general terms about how similar cases are handled.

"It is our policy in the police department to try and protect victims of any crime as much as possible," Condidorio said. "But it is still a free country and it is not our policy to try and control the actions of victims."

Even though the girl sees herself as somebody who is in a relationship with the accused, at 16 or 17, under New York state law, she is not old enough to consent to sexual relations.

Besides the alleged video involving the girl, Smith is also accused of using a video file sharing service to pass along and download videos involving other minor children engaged in sexual activity.

The type of service Smith is accused of using is called peer-to-peer, which means users install software that allows them to share the contents of specific folders on their own hard drives.

The case was brought to the attention of Le Roy Police when New York State Police Computers Crime Unit notified the Le Roy Police Department that a person at 41 Elm St. in Le Roy allegedly possessed, and was sharing sexual videos of, underage children via the Internet.

Condidorio stressed that there is no evidence that Smith shared video involving the alleged local victim in this case.

The girl said she and Smith were upset when the case was first reportedly publicly.

"It sincerely made me nauseous and shaky when I first read this article on Wednesday night -- to know that the reputation of someone you love has been destroyed for something blown so far out of proportion," the girl wrote.

"And to know that he would be viewed in a disgusting way by the public. The look on Stephen's face when he read this article was unexplainable. I have never felt how I have these past few days."

Sharilyn Fotiathis

"The case was brought to the attention of Le Roy Police when New York State Police Computers Crime Unit notified the Le Roy Police Department that a person at 41 Elm St. in Le Roy allegedly possessed, and was sharing sexual videos of, underage children via the Internet."
If I may draw your attention to the line that reads, "A PERSON" and there's more than 1 person residing in the house @ 41 Elm.

Jan 14, 2011, 10:14pm Permalink
Rob Wolfley

Fence in the Alabama swamps and let alllllllll of these "forgiveable" souls set up camp with eachother. Then they can touch eachother and be happy. Maybe this guy is a nice guy. Nice and stupid because he had sex with a minor on camera. Kudos... Kudos.

Jan 15, 2011, 1:07am Permalink
Bob Harker

H.O. thanks for following up on this controversial issue of incarceration vs. freedom for this person.

My opinion, however, remains unchanged. This "man" is a threat to the community.

Some may say "she's 17". I counter with two points: If I'm not mistaken, the age of consent in NY is 17. If true, that would indicate this girl is 16. In either case the law requires a person to be 18 to be videotaped in sexual activity.

Second, the law is the law is the law. If the community deems these acts to be acceptable, it's time to change the law - not work off of impressions, or intuition, in order to determine "exceptions". I am a strong law enforcement advocate and supporter. I also believe that actual enforcement of the law should be black and white - no gray areas. Interpretation of the law is the job of prosecutors, defense attorneys, judges, and juries - not those charged with enforcement of the law as it is written.

In closing, I'd point out that yesterday a suspect allegedly stole some drugs from another person. He was remanded on $10,000 bail. I don't condone his behavior in any way, but simply point out the disparity in the way these cases were handled.

Jan 15, 2011, 9:18am Permalink
Liz Fuchs

they've been involved since 2008.. if she's 16 now.. wouldn't that have made her 14 then.. and him 19/20? Why is he not a disgusting perv? even if only "dating" when she was 14.. he's the father of her 8 month old child.. being 16 now.. she got pregnant by him at 15 or less.. where the hell is this girls parents?

Jan 15, 2011, 4:11pm Permalink
Billie Owens

Gary, I changed the copy in the quote you cite, hopefully to be more correct and clear. If not, feel free to offer a better replacement and I'll plug it it.

I appreciate your careful reading of our website and anything I can do to improve it, just let me know, either by comment, email -- billie@thebatavian.com -- or mobile phone (585) 905-5581.

Jan 15, 2011, 8:32pm Permalink
Sharilyn Fotiathis

@ Liz where the hell is this girls parents? Well Mom is typing this response to you and Dad died almost 9 years ago.
My daugher is 17, not 16. Am I happy about any of this? Hell no. However, I have an amazing granddaughter who I love very much and in my opinion is the one who will suffer from all of this. I've got a lot of thoughts and feelings on this whole matter.
Trust me, when all is said and done Mr. Smith and my daughter will face me and they will be wishing like hell it was a judge & jury.

Jan 17, 2011, 12:12pm Permalink
Kyle Couchman

Sharilyn.....my sympathies to you and your family. I will say a prayer for you and your grand daughter. I hope you will give these two the what for, for the activities they are facing in court presently. Hopefully this will straighten them out and get them on a more responsible track for life.

Being a parent is a very rough job, so stick to your guns and do the best you can, especially for that grand daughter.

God Bless

Jan 17, 2011, 2:16pm Permalink
Liz Fuchs

Sharilyn, my sympathies are with your grand daughter. A parent dieing is no excuse, altho i'm sure was hard on both you and your daughter. Why was this not stopped before conception? And after, why were charges not filed then? I'm not going to pretend i know all circumstances. Nor will i judge. This is a sorry situation only for that granddaughter tho. My sympathies lye with non whom very well could have prevented it. Best of luck.

Jan 17, 2011, 4:28pm Permalink
Sharilyn Fotiathis

No one was trying to use a parent dying as an excuse for anything. You asked where the parents were and I told you. And I guess the question, "why were charges not filed then" could be asked of dozens of other parents who have teenagers with babies. For everything I dislike about Mr. Smith he has stuck by my daughter and that baby. How sad that her principal told her out of "more than ten" girls in the school who were pregnant last year only my daughter had someone standing by her. (Yes, I have provided shelter, heat, hot water, etc but who wouldn't for an innocent baby?)And for anything that could have been prevented..as upsetting as the whole situation was and is, nothing could ever replace this precious baby in my life. And I apologize, there's a couple sentences in your last post I couldn't quite make sense of....
@ Kyle ~ Thank you very much for the prayers and kind words. It means a lot and they are greatly appreciated. No, being a parent is not easy, especially on your own with 3 kids. However! :-) I ask for no sympathy. I've done my best and at times when my best hasn't been good enough I put myself through hell wondering what I could have done different. Then I send up the Serenity Prayer.

Jan 17, 2011, 5:18pm Permalink
Liz Fuchs

Look there is a lot I can say. And won't, because I am sincerely not trying to be rude. But I can not ignore the reference to the 10 other CHILDREN pregnant. This is a horrible and devastating epidemic. Which only leads me to believe that to many parents have forgotten that to many times being a friend to your child has stepped over that line to neglect. He stuck by your daughters side and taught your granddaughter breaking the law is ok every time you allowed him to lay with your daughter. That's like saying it's ok to rob that gas station, just make sure you pay the taxes on the money you steal. Out of those ten other children, how many were impregnated by over aged men. Of those over aged men how many had charges pressed on them by the mothers of the children? People have made the choices to and not to press charges. I can only say had it been my daughter his ass would have been in jail the day i found out he touched her. And I can not see any other mother seeing it differently. It's just not right to me. But, that doesn't make it wrong for everyone. So before you get as defensive as last time. This is just an opinion.

Jan 17, 2011, 6:23pm Permalink
Kyle Couchman

No Liz....I dont think thats what Sharilyn meant at all in regards to filing charges against her grand daughters father, I dont presume to state what she means if she wants she can do that herself.

However I will relate how I understood her comments. She is saying while the commission of the act is not justified or condoned, at least Mr. Smith has stepped up to the responsibilities that he now has. Unlike 9 other similar mistakes committed by other boys who didnt take responsibility and probably wont.

I'm sure Sharilyn will be teaching these two in her supportive way that while taking responsibility and making adult decisions about the daughter they brought into the world, they dont have the same rights as adults.

You need to let go of your anger Liz, it's not like robbing a gas station, and since it was NOT your daughter, your actions are of course going to be different. Doesnt mean yours are any more right or wrong.
So maybe heed your own words and dont be so defensive yourself, you can express your viewpoint without making it so accusatory can't you?

Jan 17, 2011, 6:35pm Permalink
Liz Fuchs

Kyle, I am not angry, I am maybe defensive. But not for myself. How many more "Teen mom" programs or real life events will it take before parents get back to being parents and stop being the friend. I'm sorry if it sounded accusatory. But her child either got pregnant under her very own roof, or her attention to where her daughter was and whom she was with was lack enough to allow her to get pregnant somewhere else. That's not accusation. That's fact. How does this sudden and extreme up rise in teen pregnancy not concern you? I understand she was hoping that he would stay responsible to his child. But look what has happened. It is very much like my reference. Just because you did something responsible after already doing something illegal doesn't make it any less illegal. He's possible going to jail for doing yet another illegal act. I'm sorry if I offended. But the fact is she is a child. As a parent it is up to us to raise and instill right, wrong, morals, respect, and pride into our children. I just can't agree with it.

Jan 17, 2011, 6:50pm Permalink
Jeremiah Pedro

Liz,

After reading the postings on here I don't think anyone was asking you to agree with anything.
You stated that you have your opinion. Well every single person posting on here has the right to post their own opinion. Just because you do not like their opinion and their opinion does not mesh with your own so what. Post your opinion and let others post theirs and leave it at that. That is what this site is for.

Jan 17, 2011, 9:05pm Permalink
Liz Fuchs

So Jeremiah, if a statement, question or response is directed towards me. I am not to respond then simply because you don't agree with my opinion? That is what this site is for. I don't believe I was out of line by the rules of this site. But thank you for your opinion.

Jan 17, 2011, 9:37pm Permalink
Sharilyn Fotiathis

Liz, you flat out stated "every time you allowed him to lay with your daughter." Careful how you word things. I NEVER allowed him to "lay with my daughter."
Maybe I should quit my job, home school the kids and go on welfare so they're never out of my sight.
And what was this original page about? Oh yes, Mr. Smith getting arrested.

Jan 18, 2011, 5:01am Permalink
Kyle Couchman

Lots of things are illegal there Liz, it's illegal to spit on a sidewalk, it's illegal to run a red light, it's illegal to speed it's illegal to cross the street anywhere but a legally marked crosswalk.

Not justifying any of these acts, but by your standards and let me quote it to you directly....

"Just because you did something responsible after already doing something illegal doesn't make it any less illegal."

Thats what you said. And really now the way you come across is just so wrong. Sharilyn did in now way say that she condoned, or justified Mr. Smiths conduct with her daughter. She just indicated she tolerates him as he is trying to do the right thing and being responsible.

What a travesty it would be for her to not try to nurture someone who is trying to step up to the plate and be responsible. No one is perfect, even yourself Liz, would you want God to lay out your mistakes and faults to be judged by others the way you are judging them?

Stop focusing on one side of the coin and maybe even commend Sharilyn for trying to be a decent and understanding human being, even while life gives her circumstances that most of us would have given up under.

Jan 18, 2011, 6:22am Permalink
Beth Kinsley

Liz, have you forgotton your own words - innocent until proven guilty? And by your own account, you shared your table with a known sex offender. I assume your kids were also at that table:

Posted by Liz Fuchs:

Mr Owens, and Mr Spencer, Mr Wilson has agreed to an interview. The only problem is you would have to make a visit with him in the County Jail. I've spoken to him and he said he is expecting you. :-)

Mr Owens, and Mr Spencer, Mr Wilson has agreed to an interview. The only problem is you would have to make a visit with him in the County Jail. I've spoken to him and he said he is expecting you. :-)

Mr Edson, how dare you! How dare you speak about a person of whom you do not know. And how dare you judge a book by it's cover. You know nothing of him, nor of his situation! The "crack house" of which you speak, how do you know he was there? How do you know, knowing his history people such as you refused him shelter. And 19 porter was one of few places that gave a roof over his head. He also frequented my home. A college educated wife and mother. Does that make him a better person, for sitting at my table? For sharing a meal with a family, something he knows little about. Evil begets evil Mr Edson. The man i passed bread with may have the scars of his sins worn on his body, but his soul is something you can see in his eyes. Are you God to judge evil through media posts? He who is without sin cast the first stone. These cold pictures of when he was arrested, it's not evil you see, it's anger. Would anyone expect anything less from you had you been arrested for crimes you did not commit? Innocent until proven guilty, and it's people like you who make people like me loose faith in humanity. I hope, heaven for bid, that when/if the day comes where your life lays in the hands of people like yourself, they see past your judgment and "holier than tho" persona. I hope they see you for a person you have not shown here.

http://thebatavian.com/blogs/howard-owens/man-facing-possible-life-sent…

Jan 18, 2011, 11:08am Permalink
Liz Fuchs

Did I judge her character? He continued to sleep with her daughter enough so that it ended up being recorded. Yes innocent until proven guilty. He slept with an under aged child, got her pregnant, and by not pressing charges she continued to allow it to happen. Who here is questioning the quilt of him sleeping with a child? That is my whole debate. Much like this Suzanne Corona joke, a slap on the wrist and send you back to make yet another fool of yourself. That same sex offender, if you continue to quote me, belonged in jail for sleeping with an under aged child. Even tho he met her drinking at a bar. I condone the mother who made the choice to press charges. Look for that quote. I'm sorry you feel I'm coming in a matter to attack somebody. I'm not. But simply put, had charges been pressed before hand, your daughter wouldn't have to worry about a future sex tape exposure. Your daughter, you and grand daughter wouldn't be dragged through judgment by anyone including me. and yes the original post is because he was arrested for doing something illegal, that was not reported by the mother. But by an investigation squad. I don't steal, I pay my taxes, I don't kill, the speeding ticket I have gotten I've paid my fine. I am not perfect. And will never claim to be such. But laws are made for a reason. Forgive me if I am a supporter of them.

Jan 18, 2011, 3:34pm Permalink
Sharilyn Fotiathis

I rarely worry about anyone judging me for they've never walked a day in my shoes. If I ever care about someone's judgment of me it will be of a person who's opinion is important in this world. So judge all you like, won't bother me a bit.

Jan 18, 2011, 8:23pm Permalink

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