NORWICH – A judge has ruled that a man accused of stalking an 11 year-old girl on the street and attacking a 21-year-old woman in an empty parking lot, in two separate incidents, should be tried for both crimes before a single jury.
The defense sought to have the charges presented separately and asked the court to throw them out altogether, citing a lack of evidence and improper police procedure.
Chenango County Court Judge W. Howard Sullivan ruled the charges against 31-year-old Andrew Jason Waterman should be decided by a jury, stating the Norwich City Police did have just cause and performed an unbiased line up. He also ruled the two separate crimes should be tried together, saying they “shared a common scheme” and “intent.”
Waterman is accused of soliciting an 11-year-old girl with drugs Feb. 2, 2009 and attacking a 21-year-old woman in a parking lot, pinning her to the ground, on March 27, 2009, both in the City of Norwich.
Waterman is charged with second degree kidnapping, a B class felony, second degree assault, a class D felony, and endangering the welfare of a child, a misdemeanor.
A month ago, Norwich Officer Ross Tumminia testified before Sullivan in an evidence hearing that Waterman attacked a woman in the parking lot behind the VFW near East Main and Silver Street in the City of Norwich at around 9 p.m. last March.
Tumminia said that during the alleged attack, Waterman pinned the woman to the ground and told her he would kill her unless she cooperated.
The victim allegedly fought with Waterman, knocking his glasses off his face, and fled to a nearby residence to call police, the officer testified.
Tumminia said police had also dealt with Waterman in another issue a month before. In that case, the department investigated an alleged incident between the defendant and an 11-year-old girl in the City of Norwich.
According the to complaint made by the parents, Waterman allegedly approached the youth in his vehicle.
“She was stopped by this male and he said ‘You’re sexy, are you single? Do you smoke weed?’” testified another Norwich Police Officer, Loriann Maerz, at the hearing.
Tumminia said the girl eventually ran home after the man exited his vehicle to engage her on foot and that the following day, she recognized his car while traveling with her mother. He testified the girl’s mother then wrote the license plate number down and gave it to police.
Tumminia said police traced the plate number to Waterman’s vehicle and at the time they warned him and no criminal charges were filed. The officer said as he was investigating assault on the woman, he noticed that the physical description given be the victim nearly matched that given by the 11-year-old girl, which eventually led to Waterman’s arrest in the case.
In his decision over the issue of separating the two crimes to potentially face two different juries, Sullivan wrote, “ In (the first crime) the scheme, for reasons primarily of location, did not proceed so far as it did in (the second crime). The difference, therefore, is plainly not of intent or plan, but only of outcome.”
Following Waterman’s arrest, the Norwich Police arranged a line up for the victims at their station in Norwich. Waterman’s Defense Lawyer Paul Tompkins challenged the line up, saying police intentionally drew attention to his client by forcing him to wear a wig and choosing men who did not look similar to his client.
District Attorney Joseph McBride said Waterman had shaved his beard, cut his long hair and made other changes to his appearance in an attempt to confuse the alleged victims. He said police prepared Waterman’s appearance to resemble his original mug shot before placing him in the line up.
Sullivan noted in his decision that Tompkins, McBride and police investigators were all present during the line up and at the time the defense’s only objection was to the wearing of a wig. Sullivan said he watched recordings of the line up and its preparation before making his decision.
“The line up consisted of six participants. All were males of Caucasian descent, roughly the same age and roughly the same height – meaning no person was suggestively larger or short than another,” stated the decision.
Each member of the line up was ordered to recite lines the victims reported their attacker had said to them. They included: “Hey sexy are you single?” “Do you smoke weed?” “Hey, do you want to hang out?” “Do you have a boyfriend?” “Shut up, or I’ll kill you.”
Both victims selected Waterman “within minutes” of viewing the line up, reported Sullivan.
In a separate decision, Supreme Court Justice Kevin M. Dowd wrote the current charges against Waterman did not fit the circumstances of the incident and recommended that they be reduced, new charges sought or that the issue be dismissed altogether.
The case was then passed to the Chenango County Court, which is now the presiding court.
The matter of probable cause, evidence and separating the charges were the only issues before Sullivan in his decision and not the technical grounds for the charges facing Waterman.
Waterman posted $20,000 cash bail and will appear in Chenango County Court at a later date.