The defense attorney for the former NYPD officer accused of killing his 8-year-old son Thomas Valva wants a judge to suppress key evidence in the case, including video and audio that prosecutors allege captures the boy shivering on the concrete floor of an unheated garage before his death.
Michael Valva, who has pleaded not guilty to second-degree murder and child endangerment in his son's Jan. 17 hypothermia death, said in a sworn affidavit filed Wednesday that police began searching his Center Moriches home without permission and before obtaining a warrant. He said he discovered the "illegal" search from watching the Nest video surveillance system in and around his home.
"I verbally requested that the police department leave my home by specifically asking them to please leave, yet my request was ignored," Valva said in the affidavit as part of an extensive motion filed Wednesday to Suffolk Supreme Court Justice William Condon requesting the judge throw out the video and audio evidence, as well as alleged statements Valva made to Suffolk police detectives.
The motion also seeks to sever Valva's prosecution from his co-defendant and fiancee Angela Pollina, who has also pleaded not guilty to second-degree murder and child endangerment charges in Thomas' death.
"Anything derived from the illegal search, must later be suppressed," said John LoTurco, Valva's attorney, who added that his client should be tried separately from Pollina because of their "antagonistic defenses."
Matthew Tuohy, Pollina's attorney, who has not yet filed his motion, said he would also seek to sever the cases. "The core of our defense is saying that Valva committed the murder. He's guilty and we're not. So how can they be tried as co-defendants? I become another prosecutor."
Valva's attorney, however, appears to be shifting blame, for the first time, toward Pollina: "Our client is meek and Angela was the disciplinarian in the relationship, so based upon the discovery, the evidence, the text messaging and the fact that there would be a shifting blame potentially toward one another, we are requesting a severance," LoTurco said.
Condon has not yet ruled on the motion. Sheila Kelly, a spokeswoman for the Suffolk County district attorney's office, did not respond to a message seeking comment Wednesday.
Thomas, a third-grader at East Moriches Elementary School who was on the autism spectrum, died from hypothermia after authorities said he was forced by Valva and Pollina to sleep in the unheated garage as temperatures outside dipped to 19 degrees.
Valva, 41, a 15-year NYPD veteran who resigned from the police department this month, described in his affidavit contentious dealings with Suffolk County police detectives on the day his son died. Valva said members of the NYPD's police union were at his home with him at the time and agreed with him that Suffolk investigators should leave.
Valva said when he got home a few hours after his son was pronounced dead at the hospital, he saw Suffolk police were still at what was then an active crime scene "taking blood samples from the garage door" and "removing physical items from the house."
Valva said the officers agreed to "pack it up" after speaking to his attorney, but then approached him and Pollina on their front lawn and a detective said, "I want that camera footage and I want it now." The detective added, according to Valva: "I will be back with a search warrant and I will have you arrested if you don't hand it over."
Valva said he replied: "Maybe you should then just come back with a search warrant, detective."
Authorities obtained search warrants, according to documents submitted as part of the motion, but the defense claims police had already searched Valva's home and therefore discovered the video and audio surveillance system before obtaining the warrants. Further, according to the motion, the department's "illegal" search provided police information that became the basis of their search warrant application.
Pollina gave police written permission to access the Nest video and audio surveillance system in the home the day Thomas died, according to a document contained in the defense motion. But that came at 2:15 p.m. — after Valva had asked police to leave his home, as evidenced by an approximately 2:05 p.m. call Valva had made to his divorce attorney asking for help in getting the police to vacate his home, according to the defense motion.