Valva trial: Judge refuses to dismiss murder charge against Michael Valva, accused of killing son, Thomas, 8

The Suffolk judge in Michael Valva's trial denied a defense request to dismiss a second-degree murder charge against the ex-NYPD officer accused in the death of his 8-year-old son after Suffolk prosecutors rested their case on Thursday morning.

The jury was not present in a Riverhead courtroom when Valva defense attorney Sabato Caponi argued that the prosecution had not presented “legally sufficient” evidence to support the charge that Valva acted with knowledge that there was "a grave risk" of serious injury or death.

Caponi cited testimony from the teachers of Thomas and his older brother, Anthony, 10, which he said was “most dramatic” with respect to Anthony, and said the injuries they described — bruises and scrapes — were not life-threatening. That testimony did not support Valva acting with a state of mind of depraved indifference, which the jury must find in order to convict Valva of second-degree murder, he argued.

Valva, 43, who has been on trial in Suffolk County Court for the last month, has pleaded not guilty to second-degree murder and child endangerment charges in the death of Thomas and the alleged abuse of Thomas and Anthony. The defense has argued during the trial that Thomas’ death was an accident.

Suffolk prosecutors contend Thomas died of hypothermia on Jan. 17, 2020, after Valva forced Thomas to sleep in a freezing garage and then doused him with cold water from a spigot outside their Center Moriches home.

Valva’s ex-fiancee, Angela Pollina, 45, has also pleaded not guilty to the same charges, and is set to be tried before Justice Timothy P. Mazzei at a date that has not yet been set.

“It was Angela Pollina who conceived of, orchestrated and implemented having the boys sleep in the garage,” Caponi said during the hearing seeking the charge dismissal, adding it was Valva who “worked to undo” Pollina’s alleged actions, as evidenced by multiple text messages detailing "instances of Michael Valva protesting Angela's treatment of the children.”

At the hearing, Caponi said prosecutors have more than 340 video clips from the Nest camera system at the Valva/Pollina residence in evidence, as well as 6,000 pages of text messages, but he said the prosecution failed to show the jury all of the material, including video and texts showing the times when the boys slept in their upstairs bedroom.

“Angela Pollina chastised Michael Valva for sneaking behind her back and letting them in the house,” Caponi argued.

Lead prosecutor Kerriann Kelly opposed the motion and recounted video evidence that the jury saw of the boys sleeping on the bare garage floor and "shivering." 

"He saw it and he knew it and he was the father and did absolutely nothing to stop it," said Kelly, who turned in Valva's direction as she spoke at a lectern mere feet from the defendant.  

Valva, seated at the defense table, did not return her gaze.

Kelly then recounted audio evidence that the jury previously heard of Valva interacting with his son the morning of his death. 

"Thomas was in the throes of dying and all he could do was scream and yell at his child," Kelly said. 

Repeating Valva's words from that morning, as previously played for the jury, Kelly, in a raised voice said: "Are you alive?" 

"Slap," the veteran prosecutor said loudly, while clapping her hands together to make the slapping sound heard on the video, which prosecutors contend was Valva striking Thomas.

"Are you alive?" she repeated. 

"That's not someone who cares if his child lives or dies," Kelly said, her voice still raised. 

A cheer and light clapping from the courtroom gallery could be heard after Supreme Court Justice William Condon, the presiding judge, denied the defense motion.  That prompted a stern rebuke from the judge. 

“Please refrain from any outbursts,” Condon said. “Both sides here are entitled to a fair trial … I know it’s emotional, we all do. An outburst like that in front of this jury could lead to a mistrial.” 

Prosecutors over the past month have called more than two dozen witnesses — schoolteachers, emergency responders, police officers and medical professionals — and presented dozens of photographs, as well as videos and text messages to the jury. The evidence detailed the last few years of Thomas’ life, which prosecutors have said were marked by alleged starvation, beatings and nights spent sleeping on the garage floor.

The prosecution’s final witness, former Suffolk Medical Examiner Dr. Michael Caplan, testified Wednesday that Thomas died on Jan. 17, 2020, from hypothermia and also suffered organ damage that in two instances was caused by prolonged stress.

After the hearing, Valva’s lead defense attorney John LoTurco then called his second witness Dr. Melina Khwaja, an emergency medicine physician, who testified that Thomas appeared to be in good health when he was examined by a physician assistant at her urgent care center on May 29, 2019 — about eight months before Thomas’ death.

Khwaja, the owner and medical director of Long Island Urgent Care centers in Manorville and West Babylon, said Valva and Pollina brought Thomas to the Manorville facility because the boy had been vomiting for several days and began suffering from diarrhea the day of his examination.

Khwaja cited records prepared by the physician assistant — and subpoenaed by the defense team — that indicated Thomas’ vital signs were normal.

There were no bruises, rashes or injuries apparent on Thomas’ body, Khwaja said, citing the records prepared by her employee. Thomas’ eyes, ears, teeth and gums appeared to be in good health, she said. He was ultimately diagnosed with strep throat and prescribed antibiotics, she said.

Under cross-examination by Kelly, Khwaja acknowledged that she was not present for Thomas’ May 29, 2019, exam and could not speak about Thomas’ demeanor or his interactions with his father and Pollina. 

Valva and Pollina did not tell the physician assistant that Thomas had struggled with incontinence or that they forced the boy to wear pullups to school, Khwaja agreed. They did not inform the PA that Thomas was excessively hungry at school, denied access to the bathroom and had been forced to sleep in a tent in the backyard or in the garage, the witness also acknowledged.

They also didn’t tell the physician assistant that Thomas had fallen down a flight of stairs about a month earlier, Khwaja agreed, when asked by Kelly.

Khwaja also said Valva and Pollina asked the physician assistant for a return-to-school note that said Thomas should only be weighed by a pediatrician or an urgent care staffer, which she called “not standard practice.”

East Moriches Elementary School Principal Edward Schneyer testified earlier this month that Valva told him he didn't want school officials to weigh his sons and submitted a doctor's letter saying the boys' weights were healthy. 

The defense will continue presenting its case Friday.