Thomas Valva case: Prosecutors say video, audio evidence were legally obtained

Video and audio recordings and other key evidence against the former NYPD officer and his then-fiancée charged in the death of his 8-year-old son Thomas Valva was legally obtained by Suffolk police investigators and should be admissible at trial, prosecutors argued in newly filed court documents.

Defense attorneys for Michael Valva, 42, and Angela Pollina, 43, who have both pleaded not guilty to second-degree murder and child endangerment charges in connection with Thomas' hypothermia death and the alleged abuse of his then-10-year-old brother Anthony, said the video was obtained without permission or a search warrant and therefore should be suppressed.

The opposing legal arguments were laid out in memos filed late last week by prosecutors and the defense, following five days of pretrial hearing testimony in May to determine whether the evidence — including video, according to prosecutors, showing Thomas shivering on the floor of an unheated garage — can be used against the defendants at trial.

Suffolk County Supreme Court Justice William Condon has yet to rule on the defense motion to suppress the prosecution evidence. The case is due back in court on Aug. 5 for oral arguments on whether Valva and Pollina should have separate trials.

Thomas Valva died Jan. 17, 2020, from hypothermia after prosecutors alleged Valva and Pollina forced the boy to sleep in the unheated garage at his Center Moriches home when temperatures dipped to just 19 degrees outside.

Suffolk prosecutors Kerriann Kelly and Grazia DiVincenzo wrote in their post-hearing memo that based on testimony from Suffolk police officers, including homicide detectives, Valva and Pollina spoke willingly to Suffolk police officers and allowed investigators to enter and search their Center Moriches home on the day that Thomas died.

"The credible testimony in this case fully supports that all of the evidence at issue was lawfully obtained and should not be suppressed," the filing says. "The police learned of the surveillance recordings directly from Valva and Pollina as part of standard investigative practices, and otherwise lawfully made plain view observations of the surveillance cameras. Thus, the surveillance videos were properly obtained as a product of Pollina’s voluntary consent."

Defense attorneys for Valva and Pollina, however, said that the emergency police response to Thomas should have halted when Thomas was brought to the hospital — and therefore the emergency exemption for police to enter the home without a warrant doesn't apply. Instead, according to the defense, police searched the home for four hours and 26 minutes and before obtaining a warrant.

"When the police secured the scene and then received the news that Thomas Valva had passed away, there was no longer a medical emergency," Valva defense attorney John LoTurco wrote in his post-hearing memo. "The police did not have an urgent need to search 11 Bittersweet Lane. They conducted a search for 4 hours and 26 minutes before Michael Valva and Angela Pollina returned home. They had time to get a search warrant."

Pollina's attorney Matthew Tuohy similarly argued in his own memo that the police search took place well after any emergency response was needed.

"The emergency here ceased upon departure of the ambulance with the child in need of assistance," Tuohy said. "The subsequent multiple 'walk throughs' had no reasonable objective connection to rendering aid but were evidence gathering in nature."

By Nicole Fuller

nicole.fuller@newsday.com@NicoleFuller

Nicole Fuller is Newsday's senior criminal justice reporter. She began working at Newsday in 2012 and previously covered local government.