A local man pleaded guilty Wednesday in a case in which a 6-year-old child was repeatedly burned with a lit cigarette.
Jason Denobrega, 33, was accused of burning the child in several spots on the child’s back in April 2012. Prosecutors say he also held the flame of a lighter to the back of the child’s knee and held the child’s thumb over a lit stove burner.
On Wednesday, he pleaded guilty to second-degree attempted assault, a felony, in exchange for a prison sentence of 18 months to three years.
But Schenectady County Court Judge Karen Drago said she agreed to the plea deal only to spare the child, now 7, from having to testify in front of the grand jury for a second time.
“Trust me when I tell you that this sentence is inadequate,” Drago told Denobrega.
The original indictment, charging Denobrega with second-degree assault, ran into trouble because the judge found problems with how prosecutors presented the case to the grand jury.
“In weighing all the options,” prosecutor Tracey Brunecz said about the plea deal, “we decided it was prudent to offer an attempted [assault charge], to get the plea, to get a conviction, to get him to prison.”
Denobrega, formerly of Eastern Avenue, was the live-in boyfriend of the child’s mother at the time. The child has been staying with relatives of the child’s mother since and has recovered, prosecutors said.
“He’s doing great,” Brunecz said. “He’s a wonderful little kid.”
Denobrega is to be sentenced in December. His total time behind bars is expected to be longer than the 18 months to 3 years, Brunecz noted. Denobrega owes about a year on a previous conviction in Sullivan County for attempted assault and weapons possession. Whatever he owes on that case would be served consecutively to the Schenectady County sentence.
Though the Schenectady incident happened in April 2012, prosecutors needed corroboration of the child’s account, due to his age. That came later in the form of a Family Court proceeding where Denobrega admitted to abusing the child, Brunecz said.
That new information led to the case being presented to the grand jury, during which the child testified. The result was an indictment against Denobrega for second-degree assault, a felony.
But, in standard post-indictment motions, Denobrega’s attorney, Joseph Battaglia, questioned the grand jury proceedings. Battaglia couldn’t be reached later for comment.
In a ruling issued last month, Drago cited problems with the prosecution’s grand jury presentation. The judge did not fully dismiss the indictment, but told the sides to submit further arguments on why it should or should not be dismissed.
Had it been fully dismissed, prosecutors would have been allowed to present it again, but that would have required the child to testify again. Instead of making further arguments, the sides reached a plea deal.
The grand jury issues surrounded the testimony of the child, and what instructions the grand jury was given.
With witnesses younger than 9, there must be a determination of whether the child can be a sworn witness. The child can testify as an unsworn witness, but, in that event, there must be corroboration of the testimony.
In the Denobrega case, Drago found the grand jury was not instructed on whether the child was sworn or unsworn, or the requirements for an unsworn witness. Drago also found a lack of a similar corroboration instruction regarding the defendant’s confession.
Schenectady County District Attorney Robert Carney said Wednesday afternoon Brunecz determined prior to the grand jury session the child could not be a sworn witness, but did not go through the process in front of the grand jury.
Carney said his office will comply with the judge’s findings in future cases.