Jurors in the trial of ex-NYPD Officer Michael Valva, who's charged with second-degree murder in the death of his son Thomas, can consider lesser charges of manslaughter in the second degree and criminally negligent homicide, the judge ruled Tuesday. Closing arguments will be on Thursday. NewsdayTV's Cecilia Dowd reports. Credit: Newsday/John Paraskevas; Newsday file; Photo Credit: Zubko-Valva; Suffolk County District Attorney’s Office

The jury in the murder trial of ex-NYPD Officer Michael Valva will consider two lesser charges in addition to second-degree murder as it seeks to determine whether Valva should be convicted of killing his 8-year-old son Thomas by allegedly forcing him to sleep in a freezing garage, the presiding judge ruled Tuesday as the defense rested its case.

Suffolk Supreme Court Justice William Condon said the jury, which is scheduled to hear closing arguments in the trial Thursday, can consider whether to convict Valva of second-degree manslaughter, which is punishable by a maximum of 5 to 15 years in prison, or criminally negligent homicide, which is punishable by up to 4 years in prison. A conviction on the second-degree murder charge carries a sentence of 25 years to life in prison.

Prosecutors have alleged that Valva, 43, acted with depraved indifference for Thomas’ life when he allegedly forced the boy, who died of hypothermia, to sleep in the garage in 19-degree weather and then hosed him off outside while naked with cold water from a spigot.

Valva’s defense attorneys have argued Thomas’ death was an accident caused by Valva giving the child a warm bath after sleeping in the unheated garage and that the ex-cop never wanted his son to die and tried to save his life – facts they argue don’t sustain the second-degree murder charge.

Earlier Tuesday, two defense witnesses testified that Valva was "distraught" at the Patchogue hospital where Thomas died and was weeping and moaning after viewing the boy’s body at the morgue the next day.

"He was distraught," said Tony Mascia, head of security at Long Island Community Hospital, and a former NYPD cop. "He was holding his head down. He was putting his hands into his face." 

Defense witness Tony Mascia arrives at Criminal Court in Riverhead...

Defense witness Tony Mascia arrives at Criminal Court in Riverhead on Tuesday. Credit: Newsday/John Paraskevas

Mascia, who testified under subpoena, was on the witness stand inside a Riverhead courtroom as the defense played a video from the hospital's surveillance system, showing Valva inside the hospital emergency room's "family room" from about 10:45 a.m. to 1:30 p.m. Thomas had been pronounced dead in the hospital’s nearby trauma room at 10:28 a.m.

Valva, who had pleaded not guilty to charges of second-degree murder and child endangerment in the Jan. 17, 2020 death of Thomas and the alleged abuse of both Thomas and his eldest son Anthony, was seen in the video seated in a chair and at different points rocked back and forth, put his forehead in one of his hands and also appeared to be using his phone several times.

Mascia, as well as a social worker and a priest, was seen offering comfort to Valva by rubbing his shoulders and arms. Then-lead Suffolk homicide detective Norberto Flores was also seen on the video speaking to Valva, Mascia testified, and a uniformed Suffolk police officer patted Valva down to determine if the then-cop was carrying a firearm. Valva complied, according to the video.

On cross-examination by lead prosecutor Kerriann Kelly, Mascia noted that the video showed Valva was on his phone, texting and making at least one call, and at one point stretched his legs out in front of him while he sat down. He had no trouble walking, Mascia agreed.

“He looked pretty relaxed and comfortable there?” Kelly asked.

“Yes, he did,” Mascia replied.

 “He never leaned over and took a tissue?” Kelly asked, referring to a box of tissues in the room.

“I did not see that,” Mascia said. 

Defense witness Kenneth Wengert arrives at Criminal Court in Riverhead...

Defense witness Kenneth Wengert arrives at Criminal Court in Riverhead on Tuesday.

Credit: Newsday/John Paraskevas

NYPD Transit Officer Kenneth Wengert, also a union delegate for the Police Benevolent Association, testified that Valva appeared “stoic” when he arrived at the Bittersweet Lane home on the morning of Jan. 18, 2020, to offer support.

Wengert, also testifying under subpoena, said he avoided having a conversation with Valva about the circumstances surrounding Thomas’ death because the case was under investigation. He testified that he accompanied Valva and his ex-fiancee, Angela Pollina, to the Suffolk County Medical Examiner’s Office in Hauppauge later that day to identify Thomas’ body. 

“I would say he was stoic and not functioning as he normally would,” Wengert testified when defense attorney Anthony La Pinta asked him about Valva’s emotional state that day. 

Valva was much more emotional later that day, according to Wengert, who said he was “weeping, wailing, moaning and crying” after viewing Thomas’ body at the morgue. 

Under cross-examination from Suffolk Assistant District Attorney Laura Newcombe, Wengert testified that while he was aware of issues between Valva and the boys’ mother Justyna Zubko-Valva, Valva never complained to him about Pollina and never said she was “domineering,” a characterization that Valva’s defense attorneys have repeatedly used to describe Pollina.

 Wengert also testified that he was aware that Valva had established a GoFundMe page to raise money for Thomas’ funeral expenses. Valva had told him that he had been struggling with financial problems and didn’t have money for the funeral. 

In his redirect, La Pinta asked Wengert if he was aware that Valva had taken advances from his pension in the years before Thomas’ death. Wengert said he had not previously known that.  

Later Tuesday, Steven M. Troyd, a private investigator hired by the defense, narrated a series of text messages between Valva and Pollina from 2018 to 2020.

Thomas Valva in an undated photo.

Thomas Valva in an undated photo. Credit: Courtesy Justyna Zubko-Valva

The texts presented by Troyd, who was hired by the defense to prepare a PowerPoint presentation with the messages, appeared to support the defense claim that Valva was overwhelmed financially and emotionally from a lengthy custody battle with Zubko-Valva, and was forced to stay in the relationship with Pollina, despite her treatment of the boys, because he had nowhere else to go. 

In a Feb. 26, 2018, text message exchange, Pollina accused Valva of fighting for custody of this three sons because he did not want to pay child support to Zubko-Valva. 

“Of course I love my kids,” Valva fired back. “I’m no deadbeat dad.” 

“You want a life with me, then give them back,” Pollina replied. 

 In another text exchange, dated Feb. 7, 2019, Valva told Pollina he understood that she had to leave the house to blow off steam and pleaded with her to return home. 

“I want that [expletive] kid out of the house,” she said, referring to Anthony. 

Other text exchanges detailed the financial problems the couple experienced after they moved in together, with Pollina complaining that their mortgage was $4,200.  Pollina urged Valva to move out and take his sons with him. 

“Give me a chance to find a place first so they’re not living out of a car,” Valva responded in a Feb. 7, 2019 text. 

Pollina told Valva, “foreclosure is your favorite.” Valva wrote back: “And dumping me is yours.”  

In another text exchange, Pollina appeared angry at Valva for letting the boys in the house when she was not home. “You did this when my back was turned,” she said. 

 In a Dec. 21, 2019 text, Pollina appeared upset that she never saw Valva anymore because he was working nights for additional money. 

“I’m trying so hard to make it all work,” Valva replied.  

Condon told jurors that they could begin deliberations as early as Thursday afternoon.

Lead Valva defense attorney John LoTurco also informed the court that his client would not testify at the trial. Asked directly by Condon if he had decided not to testify, Valva replied, “yes, sir.”  

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