ALBANY — James Hockenbury, 49, of Guilderland Center, now stands accused of sexually abusing more than one young boy.

Hockenbury, who worked in childcare for 30 years, was arrested by Guilderland Police a year ago, charged with a first-degree criminal sexual act, a felony, after an Albany couple contacted police to report that their son had been sexually abused while in Hockenbury’s care.

During an interview with the Albany Police, Hockenbury signed a statement saying he had encouraged the boy — a 3-year-old he had been babysitting — to touch and lick his penis. Hockenbury said that was the only time he’d acted on the “sexual interest for children” he’d had for a dozen years.

At a pretrial hearing on April 26 in Albany County Court, it emerged that a second child alleges abuse by Hockenbury. Also, questions were raised about computers that were seized but never searched and about whether the suspect was properly read his Miranda rights.

Meanwhile, a trial date was set by Judge Peter Lynch for June 5.

Lynch will issue a decision, before trial, on two points, Cecilia Walsh, spokeswoman for the Albany County District Attorney’s Office, told The Enterprise: whether the oral and written statements made to Albany Police — Hockenbury’s written confession — should be suppressed or can be introduced at trial, and whether his electronic devices were seized and searched lawfully.

The second child, also from Albany, and his mother came forward on June 7 to allege abuse by Hockenbury, according to Albany Detective Andrew Tarpinian, prompting Tarpinian to apply for a warrant to search the devices being held by the Guilderland Police.

At the mention in court last week of the search-warrant application, Hockenbury’s attorney, Mark J. Sacco of Sacco Tyner, said, “So there are two agencies investigating this: Albany Police, and Guilderland Police who made the arrest and had the evidence in their locker.”

The second child was forensically interviewed on June 8 and “effectively disclosed” to police that Hockenbury “touched his ‘pee pee’ under his clothes,” according to the search warrant. The child also stated, the warrant application says, that Hockenbury, whom the child called “Mr. Jim,” would play tag with him, but that “Mr. Jim’s rules were that tagging could only occur with a touch or tag of the private area.”

The child also said he was made to look at and touch Mr. Jim’s penis, the application says. The child described Mr. Jim taking pictures of him while he was naked, both with a camera and with a cell phone, the warrant application says.

That second child “was 3-and-a-half or 4, I believe,” Tarpinian said on the stand.

Tarpinian also said that he first applied for the warrant on June 16 and then amended his application on June 22 to include the New York State Police as co-applicants so that they could conduct a forensic search.

The hearing

When Hockenbury was arrested — taken into custody — by Albany Police on April 19, 2016, Guilderland Police came downtown and took Hockenbury from Albany Police custody and charged him — presumably because, although the mother and child first came to Albany Police to report the incident, the crime Hockenbury had confessed to had happened in Westmere, at the school playground on the morning of Saturday, April 16.  

Tarpinian had read Hockenbury his Miranda rights twice, he said on the stand — once when the two first entered the police station’s interview room and again before Tarpinian wrote up a statement for Hockenbury, on the basis of their conversation as well as some written materials that Hockenbury had brought with him to the interview.

Tarpinian described the first time he Mirandized Hockenbury: “I reminded him he was not under arrest, and he could leave at any time. I asked him if he watched police shows on TV, and if he knew his rights. I used the Miranda warning sheet, and read Mr. Hockenbury’s rights to him one by one.”

Hockenbury said that he wanted to talk, said Tarpinian, adding, “All of that is on videotape.” A compact disc containing video and audio tape of the three-and-a-half-hour-long interview was submitted into evidence; Tarpinian said the camera had remained on the whole time that Hockenbury was there.

Their “lengthy conversation” included discussion of Hockenbury’s upbringing, his professional life, his wife, his marriage, and the events of April 16, Tarpinian said.

Hockenbury agreed, Tarpinian said, to write a letter of apology to the child and his parents. Tarpinian left him alone in the room while he wrote, but the video camera would have continued to record, the detective said. Entered into evidence were what Tarpinian described as two unfinished letters and one completed letter that Hockenbury wrote to the boy and his family.

After the Guilderland Police took custody of Hockenbury, Investigator Charles Tanner said he had a “conversation about his Miranda rights” with Hockenbury; Tanner said on the stand that he asked Hockenbury if he had understood the rights that Albany Police had read to him earlier, and that Hockenbury had said yes.

Miranda rights became part of United States law in 1966 after the Supreme Court set aside the conviction of Ernesto Miranda on charges of armed robbery, kidnapping, and rape; the court ruled, in the landmark decision Miranda v. Arizona, that suspects must be informed — in a process that came to be known as a Miranda warning — of their right against self-incrimination, including the right to remain silent, and their right to consult with an attorney before being questioned by police. If a suspect isn’t read his Miranda rights, his statements may not be admissible in a criminal trial.

After the pretrial hearing, The Enterprise asked Deputy Chief Curtis Cox of the Guilderland Police whether the department, when taking over the custody of a suspect who had already been arrested and read his rights by another police department, would need to read that suspect his or her rights again, or whether it would be enough to say, “Did you understand your rights when the first police department read them to you before?”

Cox said asking that question would not be enough, and that the suspect would need to be read his or her rights one by one. “We have a policy where we Mirandize every suspect,” he said. Would it count as Mirandizing, he was asked, if Guilderland Police asked a suspect whether he or she had understood the rights read to him or her by another department earlier? “When we Miranda somebody, we read the card verbatim,” he said, referring to Guilderland Police procedure.

It also emerged in court that at the end of the Albany Police Department’s interrogation of Hockenbury — during which Tarpinian typed out a lengthy statement, and Hockenbury signed it — Guilderland Police came and picked him up, and that that was the last time that Tarpinian saw Hockenbury.

When Tanner took Hockenbury from the Albany Police station and drove him in his “detective vehicle,” as Tanner said on the stand, Hockenbury came along “voluntarily” and “not in handcuffs,” the detective said.  

“He was under arrest then, right?” asked Hockenbury’s attorney, Sacco.

“Yes, he was not free to go,” Tanner said.

“Under arrest?” Sacco pressed.

“Yes,” said Tanner.

After Guilderland Police took Hockenbury from Albany Police custody, Tanner had two other officers drive him to his apartment in order to seize his electronic devices — a computer, a laptop, a tablet, a flash drive, and a smartphone, according to a search warrant on file at the Albany County Court — but the devices sat locked in an evidence room for two months, and no one ever looked at them or searched them for child pornography, Tanner said in court.

It remained unclear, throughout the proceeding, why the devices were never searched while in the custody of Guilderland police. Asked about this, Cox told The Enterprise that he could not answer because it could jeopardize the case.

Tanner said in court that he had officers seize the devices from Hockenbury’s home because he was concerned that there might be child pornography on them. He was concerned, he said, because Hockenbury had admitted to assaulting a minor, and Tanner had “knowledge,” as an investigator, that many people who assault children also collect pornographic images of children. He had also been worried about possible additional victims, he said.

The devices were taken from Hockenbury’s home mid-afternoon the day he was arrested, April 19, Tanner said — apparently while Hockenbury was in custody of the Guilderland Police, since they had taken him from Albany Police at about 1:30 p.m., and the devices were taken about two hours later.

“To the best of my knowledge, the wife [Hockenbury’s wife] was there and gave consent, and that’s when they were turned over to police,” Tanner said.

The Guilderland Police Department had received Hockenbury’s oral and written consent to search the devices, Tanner said.

“Were those electronics already in your possession when he gave you the consent?” Sacco asked.

When Sacco asked if he had ever examined the devices, Tanner said, “No, I needed a warrant to look at them further.”

Sacco asked rhetorically, “But you said your first priority was to find out if there were any more victims, and no one looked at these computers for two months?”