Search at issue in baby sitter conviction appeal

PHOTOGRAPHER: Steven Cook

The appeal of a Schenectady baby sitter’s conviction on a top-level assault count was heard Friday, with justices in the Appellate Division of state Supreme Court taking special interest in a prosecutor’s reference to the defendant’s partial consent to search her home.

Attorney Karen Crandall, the appeal attorney for Rebecca Polomaine, used that issue and others Friday to argue Polomaine did not receive a fair trial and that her conviction should be overturned.

Gerald Dwyer, of the Schenectady County District Attorney’s office, though, countered that the defense failed to object to the reference, and that the search itself was central to the defense strategy to paint the police investigation as lacking.

Polomaine is currently serving 18 years in state prison after her 2008 conviction on one count of first-degree assault.

A Schenectady County Court jury concluded it was Polomaine, and not another child, who caused serious and lasting injuries to then-2-year-old Riley Gilbert on March 27, 2007.

Prosecutors contended Polomaine smashed Riley’s skull while the girl was in her care.

At the time of Polomaine’s July 2008 sentencing, prosecutors showed a video of Riley, then 3. She was unable to walk or talk as a result of the attack. She also couldn’t feed herself and was legally blind.

Polomaine, who has maintained her innocence throughout, once rejected a plea-bargain offer that would have sent her to prison for five years.

Defending Polomaine at trial was attorney Joseph Litz; prosecuting her was Andra Ackerman.

During arguments Friday, justices focused their questions of Dwyer on the issue of Polomaine’s partial consent to search her home.

Polomaine’s attorney Crandall contended that, like a defendant invoking his right to remain silent, the fact that a defendant refused a full search cannot be used against them at trial. Crandall contended that was done in Polomaine’s case.

Justice William E. McCarthy started the questioning, confirming with Dwyer that the prosecution used the information first.

Dwyer said the prosecutor did. But the defense attorney used it to argue the police investigation was inept. There was also no objection to the prosecution’s mention of that.

“This is all part and parcel of the strategy that the defense counsel was using throughout this case,” Dwyer argued.

Crandall also argued that Polomaine received ineffective assistance from her attorney at trial.

Dwyer said that he believes the conviction should stand.

“There’s no doubt that this defendant received a fair trial,” Dwyer said, “and I think there’s no doubt, in the sum total of things, that she had effective assistance of counsel.”

In rebuttal, though, Crandall asserted the opposite.

She also argued that the issue of use of the search under the Fourth Amendment is the same as the Fifth Amendment right against self-incrimination.

“Whether or not it’s someone invoking a Fifth Amendment right, or a Fourth Amendment right, it’s a constitutional right,” Crandall said. “And invocation of a constitutional right should not be something that the prosecution uses.”

A decision on the appeal is expected in the coming months.