Opinion
980/10.
Decided August 5, 2011.
The defendant is represented by John Maccarone, Esq.
The People are represented by Assistant District Attorney Kevin Higgins of the Queens District Attorney's Office.
The defendant moves to suppress physical evidence and his statements. He is charged in a four count indictment with the crimes of criminal possession of a weapon in the second degree (2 counts), criminal possession of a weapon in the fourth degree and falsely reporting an incident in the third degree. Detective Michael Hiddessen, Detective William Davis and Sergeant Peter DiMaggio testified on behalf of the People. Mr. Lawrence Martone, Mrs. Janetta Bagby and Mrs. Marilyn Martone testified on behalf of the defendant. This Court determines that the People's witnesses gave credible testimony. On the other hand, the testimony of the defense witnesses contained many inconsistences and appeared to be transparently tailored to support illusory arguments and create pseudo-suppression issues, thus rendering much of such testimony not credible. Accordingly, this Court makes the following findings of fact and conclusions of law:
FINDINGS OF FACT
On May 5, 2009, at approximately 7:15 p.m., Detective Michael Hiddessen, a veteran of the New York Police Department for almost 19 years, assigned to the 105th Precinct, responded to a call from personnel at Queens General Hospital that a male victim of a gunshot wound was being treated in the emergency room. Upon his arrival at the hospital, the detective conferred with the uniformed police officers from the 105th and 107th Precincts who were present. He also spoke with Dr Nadir, the emergency room doctor and with the defendant's father. The police officers present told the detective that the gunshot victim, the defendant William Bagby herein, had been shot in the vicinity of 225 Street and South Conduit Avenue, in Queens. The emergency room doctor advised the detective that there was a small caliber bullet in the defendant's left leg in the calf region. The doctor advised the detective that the bullet entered in a downward trajectory. (This was of significance to Det. Hiddessen as being consistent with either someone shooting the defendant at close range or the wound being self-inflicted.) Det. Hiddessen stated that his suspicions were aroused. The doctor told the detective that the bullet was to be left in the defendant's leg as it would not harm him.
At approximately 7:45 p.m., Det. Hiddessen spoke with the defendant about the incident. He asked the defendant about eyewitnesses, perpetrators involved and if anyone was with him. In sum and substance, the defendant replied that: he was in his car and a homeless guy came up to him and asked him for a dollar. He said he didn't have any money. Then the homeless guy asked him for a cigarette. There was an exchange of words. The homeless guy reached in and put a gun to the defendant's leg and fired one shot. The defendant then went to his home in Long Island and he changed his clothes. He got his father and then they went to Queens to the emergency room.
Det. Hiddessen asked the defendant if he would come to the precinct to discuss the incident further and to view photos of his assailant on the photo manager system. The defendant said that he was willing to do this and he was totally cooperative. The detective discussed this plan with the defendant's father, who was still at the hospital with his son. The detective wanted to preserve the clothing the defendant had been wearing at the time of the shooting incident and asked the defendant's father if anyone was present at the defendant's home. The defendant's father replied that he wasn't sure if there was anybody at the house but that he could have his wife meet people there. The defendant's father had told Det. Hiddessen that he was on the phone with an insurance company and his son came home and informed him that he had been shot in the leg. He got dressed and took the defendant over to where the defendant's mother was working; she took a look at his bullet wound and said that he had to go to a hospital. His father said he only knew of one hospital in Queens so he went to Queens General Hospital. (The defendant's mother, Mrs. Janetta Bagby, testified that she did not see her son or his wound before the defendant went to the hospital.)
The defendant was not handcuffed at the time he left the hospital, and was taken to the 105th Precinct at approximately 10:00 p.m. . Det. Hiddessen does not recall what clothing the defendant was wearing at this time. Once at the precinct, the defendant agreed to write out a statement. This statement was written in Det. Hiddessen's presence. The defendant was not advised of Miranda warnings prior to writing out his statement. According to Det. Hiddessen, the defendant was not in custody at this time insofar as he was being dealt with as a crime victim and the defendant was not told that he was under arrest.
The defendant's first written statement, admitted into evidence at this suppression hearing (spelling not corrected) was as follows:
Today I was going down 225 st. and stop at the light a guy coming from the store direction came to the car and ask me daddy you got a dollar I told him get the fuck out of here and before I can say anything else he shot me and I put the gas on and went to my new house in long island to ask my father what Hospital to go to. After that I went to inform my mom ½ mile down the road and then went to the hospital.
Today I went to the doctor office then went to my block to chill with my people's and went to the store to get a dutch and turn on 223 and 144. I stop for a moment talk too cjus and then went on to 225 st. and conduit.
This statement was signed by the detective and the defendant. It was completed at 10:10 p.m. . The defendant was not placed under arrest at this time. The defendant did not ask if he could leave.
Shortly after obtaining this statement from the defendant, Det. Hiddessen was informed that physical evidence was recovered from the defendant's home in Glen Cove. The defendant never viewed photographs at the precinct.
Detective William Davis, an 18 year veteran of the New York Police Department, was working at the 105th Precinct on May 5, 2009. He was assigned to investigate a shooting at 225th Street and South Conduit Avenue in Queens and he responded to that location to look for witnesses and evidence related to such shooting. No witnesses were located and no ballistic evidence was found at the scene. The detective was told that the defendant had been treated at a hospital and had related the facts of the shooting in a written statement to police. At about 10:30 p.m., he, along with Detective John Roberts and Detective Stephen Vessa were directed to drive to the defendant's residence at 4 Pearl Street, in Glen Clove, New York to gather evidence related to the shooting including clothing.
Prior to their arrival at 4 Pearl Street, the New York Police Department contacted the Glen Cove Police Department and requested their assistance. The detectives arrived at the location first. (According to Mr. Lawrence Martone, the landlord and owner of the 4 Pearl Street house, he had received a telephone call from his aunt who lived next door to that house, that a police car was at the house earlier in the day). Then the Glen Cove police officers, Mrs. Janetta Bagby, (the defendant's mother) and Mr. Martone arrived at said location.(Mr. Martone was Mrs Bagby's employer of 10 years. Mrs. Bagby was employed as a home health aide for Mr. Martone's disabled daughter. In April of 2009, when the Bagby's home in Queens had a fire, he rented them the house in Glen Cove. Mr. Martone indicated that he had a lot of affection for Mrs. Bagby.) When the detectives arrived at the house, it was raining. (Neither Mrs. Bagby nor Mr. Martone recalled the weather conditions.) The detectives pulled up behind them and exited their unmarked vehicle. One spoke with Mrs. Bagby and the other spoke with Mr. Martone. (Mr. Martone testified that he heard Mrs. Bagby ask about a search warrant. Mrs. Bagby testified that she asked if the police needed a search warrant and was told no, they don't have to have one.) Mr. Martone had his keys to the house with him.
The police were invited inside the house by Mrs. Bagby who said they could come inside because it was raining out. (Mrs. Bagby in her testimony disagreed, claiming that to her surprise, Mr. Martone unlocked the door to the house and let one or two of the detectives inside. Additionally, Mr. Martone testified that he heard one of the policeman say that someone might be inside the house; either hiding or hurt.)
Once inside the house, Det. Davis stood in the living room, speaking with Mrs. Bagby about the physical condition of her son. (Mrs. Bagby testified that prior to this time, she did not know her son had been injured.) By now, all six police officers and detectives were standing inside or near the living room/dining room area of the house. Det. Roberts, who was standing by the defendant's open bedroom door, called to Det. Davis by name. They were about 10 feet away from each other. Det. Davis looked up, and was able to observe a shotgun in plain view at the foot of the bed. Sgt. DiMaggio, of the Glen Cove Police Department confirmed that the door to the defendant's bedroom had been wide open and observed that the shotgun was black and appeared altered in barrel length. Sgt. DiMaggio also saw a black body armor vest in plain view on the back of a chair in the same room. This was also subsequently observed by Det. Davis.
At the sight of the shotgun, members of the Glen Clove Police Department discussed the possibility of signing consent to search forms with Mr. Martone and Mrs. Bagby. Mrs. Bagby was upset that a weapon was found in the house and stated that she absolutely consented to removing such item from the house, adding that that's not the way she raised her child. Mrs. Bagby signed a consent to search form. Mr Martone also signed a consent to search form. (Copies of these forms were admitted into evidence at the suppression hearing.) The forms were witnessed by Sgt. DiMaggio and Det. Petrone. No weapons were displayed at the time the consent forms were executed. These consent forms were not dated, and did not have a time of execution. While the forms did not limit the search to a particular room in the house, it was explained to Mrs. Bagby that they would only be searching her son's room; that they would not tear the house apart. Each form specifically permitted a search for weapons and drugs.
Prior to the signing of the written consent forms, the shotgun was not moved, but guarded by a police officer. Police officers did not enter the defendant's bedroom before these consent forms were signed. After such forms were signed, the Glen Cove police retrieved the shotgun, the body armor vest, several baggies containing what appeared to be marijuana, a digital scale, shotgun ammunition, and .22 cal ammunition from the defendant's bedroom. The clothing that the defendant was wearing at the time of the shooting was not recovered. By 11:55 p.m., the NYPD detectives left 4 Pearl Street and returned to the 105th Precinct. The Glen Cove police left soon thereafter. Mr. Martone left while the police were still present at the house. Mrs. Martone arrived at the house shortly thereafter while a few police officers were still present. She left the house after the police left.
When Det. Davis returned to the 105th Precinct, he sought out Det. Hiddessen. He asked Det. Hiddessen about his investigation. Det. Hiddessen indicated he did not believe defendant's story and that defendant's wound could be self-inflicted. Det. Davis related details about the property discovered at 4 Pearl Street. Det. Davis and Det. Roberts then found the defendant, who was sitting in an interview room at the precinct. Det. Davis does not recall what clothing the defendant was wearing except that he was wearing work boots. They introduced themselves to the defendant. Det.Davis asked the defendant how he was feeling. He then told the defendant that there had been a turn of events that the defendant was not aware of yet; that they found firearms and drugs and such, and that his mother and father were going to be arrested for having those items in the residence. The defendant leaned forward, tapped the table and said: No they're not. Det.Davis asked: Why is that? The defendant replied: Because everything in that house belongs to me and I'll tell you exactly what happened.
Det. Davis then showed the defendant a sheet of paper with a copy of Miranda rights printed on it (admitted into evidence at the suppression hearing). The defendant read it, wrote the word Yes next to each of the rights and initialed that he understood each of his rights and was willing to answer questions. The defendant printed his name on the sheet and signed it. Det. Roberts and Det. Davis signed the sheet as well.
The defendant then verbally related what happened to the detective. The defendant then wrote out a second written statement (admitted into evidence at the suppression hearing). This statement was dated May 6, 2009; and had 1:00 a.m., at the beginning of the statement and 1:15 a.m., at the end. The defendant signed his name at the end of this statement. Det. Roberts and Det. Davis signed as well. The defendant wrote, (spelling not corrected):
My name is Willie Bagby and I am writing this statement of my own free will after having been advised of my rights. elear today I was parked in front of my house at 146-40 222st Rosedale, NY 11413. I went to move a 22 caliber revolver from the storeage compartment located on the driver side door and in doing so causing the gun to go off and shot me in the leg. I then drove to my new home located 4 Pearl st. Glen Cove NY Where I told my father that I had been shot and I need to go to the hospital. Then I remove the guns from the car and put it in the house The guns are a 12 gauge and a 22 caliber. I left the 12 gauge in my room and the 22 caliber in the closet.
At the time the detectives were with the defendant, no weapons were displayed. The defendant told Det. Davis that the .22 caliber pistol was in the bottom of his mother's closet in her bedroom. Det. Davis notified the Glen Clove Police Department about the location of the .22 caliber revolver. The defendant was not placed under arrest until after he made this second written statement.
Just prior to 1:00 a.m., on May 6, 2009, Sgt. DiMaggio, having received a telephone call that a second gun was at 4 Pearl Street in the mom's bedroom closet, returned to the house with Police Officer Ryan Nardone. When they arrived at 4 Pearl Street, they knocked on the front door. Mrs. Bagby answered the door. Sgt. DiMaggio explained to her that he had received a call from the 105th Precinct Detective Division informing him that her son stated that he had placed a gun inside of her bedroom closet in a blue bag. He asked Mrs. Begby if it would be okay for her to go into the closet and bring the blue bag out to him. Mrs. Bagby replied that she would absolutely not do this; if that was the case he would have to come in and get it himself. Mrs. Bagby then invited them inside the house, showed them where the closet was and opened the door to the closet. Seeing a bag inside the closet, Sgt. DiMaggio pointed to it and said: I think that might be the bag right there . Mrs. Bagby replied: Well go ahead and get it . (Mrs. Bagby disagreed, and testified that police just came into her home and proceeded to search her closet without speaking to her. Mrs. Martone, who returned to the house herself when she saw the return of the Glen Cove police, testified that she asked the police at that time if they needed a search warrant.) The bag was removed from the closet. It was opened and a small revolver was inside. Sgt. Dimaggio showed it to Mrs. Bagby. (Mrs. Martone testified that she heard a phone conversation initiated by a police officer stating that his story checks out.) Then the Glen Cove police left the house with the revolver.
Where this Court has noted testimony of the defense witnesses contradictory to the People's witnesses, this Court specifically determines that: (1)they were clearly interested witnesses, and (2)their testimony appears to have been tailored to invent and manufacture search and seizure issues including falsely creating issues as to the need for a search warrant, a false claim that the police said someone was inside the house hiding or hurt, false claims as to the entry into the house, a false claim that the police searched the entire house and false claims as to the manner the consent to search forms were executed. Furthermore, the defense witnesses all demonstrated highly selective and very incomplete memory of the events in issue.
Mr. Martone appears to have invented the claim that the police searched the entire house wherever they wanted to search and made false claims as to the manner that the police opened the closet door in the defendant's bedroom and picked up some object that he first said he can't recall and that he then said was ammunition that was on the floor. He also appears to have invented the claim that the police recovered a small gun from a dresser drawer inside of defendant's bedroom. Mr. Martone's claim that the consent to search form was executed right before the police left, like an afterthought, as the police said that this was a formality, is not credible.
Mrs. Bagby's testimony is simply not credible as to her claims that: she asked the police before they entered the house as to the need for a search warrant and was told by the police that they don't have to have one and that she repeated this question as to the need for a search warrant after contraband was found in her son's room only to again be nastily told they did not need one. Her testimony as to the details of the search of her son's room appears to have been invented as well as her claim that she was told she had to sign the consent to search form that she never read. She even incredibly denied signing the form with her name on it. Even upon being probed by the Court as to the issue of how long she was in the house before she signed such form, she agreed at first that it could have been as little as a minute and as much as three hours, until settling upon an estimate of one hour. Mrs. Bagby contradicted Mr. Martone's testimony that the police did a full-scale search of the entire house, testifying that this was not the case; that the police did not search any other rooms. Mrs. Bagby apparently invented her testimony that the police just barged into the house without permission a second time to retrieve the gun from the closet in her bedroom. Her testimony denying that her son and her husband came to her job to tell her that her son had been shot and that she first found out that her son had been shot when the police came to her house is incredulous, particularly in view of Det. Hiddessen's testimony as to what the defendant's father told him as to this and the defendant's written statement contradicting such testimony.
Mrs. Martone's testimony about questioning the police as to the need for a search warrant as they continued to search the defendant's bedroom and that the police just sped back to the house the second time only to come in without permission to search the closet in Mrs. Bagby's room, also appears to be directly tailored to invent and manufacture search and seizure issues.
CONCLUSIONS OF LAW
This Court will address the admissibility of the defendant's oral and written statements; the first oral statement to Det. Hiddessen at Queens General Hospital, the first written statement made to Det. Hiddessen on May 5, 2009 at approximately 10:10 p.m., the second oral statement to Det. Davis and Det. Roberts prior to his second written statement and the second written statement made to Det. Davis and Det. Roberts on May 6, 2009 at approximately 1:00 a.m., Next, this Court will consider the legality of the two searches of the defendant's home; specifically, the search of the defendant's bedroom during the evening of May 5, 2009 and the second search, to wit: the search of the defendant's mother's bedroom closet, shortly after 1:00 a.m., on May 6, 2009.
At the outset, this Court notes that the unfolding chain of events in this case began with the medical treatment of the defendant's gunshot wound on May 5, 2009. It is not in dispute that the defendant, accompanied by his father, presented himself at Queens General Hospital as a victim of a gunshot wound. At the time the defendant first encountered law enforcement officials at the hospital, the defendant had informed them that he was the victim of a shooting. He was not a suspect at this time. See, People v Shepard , 13 AD3d 1223 (4th Dept. 2004). The fact that the defendant . . . had sustained a gunshot wound does not by itself render his subsequent statements involuntary. Shepard at 1223. See, eg People v Thomas , 13 AD3d 259 (1st Dept. 2004); (defendant's statements made while hospitalized as a victim of a gunshot wound; defendant not in custody at the time.) When defendant arrived at the hospital, he presented himself as a crime victim . . . Defendant's oral statement . . . to police reiterated what he had told hospital personnel as to the circumstances of his being shot, i.e., that he was the victim of a robbery attempt and an unprovoked shooting . People v Maldonado, 244 AD2d 759, 760 (3d Dept. 1997)]. In similar circumstances, it has been held that: The statement made by the defendant to Deputy Chief Bloom at the hospital was in response to investigative inquiries and was not the result of custodial interrogation. People v Stackhouse, 160 Ad2d 822, 823 (2d Dept. 1990). As such, this Court finds that the defendant's oral statement to Det. Hiddessen was lawfully obtained and need not have been preceded by Miranda warnings. Therefore, suppression of such oral statement is denied.
After speaking with the detective, and giving him an oral statement, the defendant voluntarily agreed to accompany him to the 105th Precinct. Defendant voluntarily accompanied the police to the police station, was cooperative, and was never handcuffed, and the police conducted only investigatory rather than accusatory questioning. . . . People v Murphy , 43 AD3d 1276 , 1277 (4th Dept. 2007). As in People v Tyce, 160 AD2d 1033, 1034 (2d Dept. 1990), . . . the defendant was never handcuffed, no guns were drawn, and he never objected to accompanying the detective to the precinct .
Once at the police precinct, the defendant agreed to write out his version of the shooting. At this time, the defendant, in spite of the detective's suspicions, had not been told that he was under arrest. This Court, however, must further consider whether or not the defendant was in custody and whether or not custodial interrogation took place.
It is well-settled that: [t]he issue of whether a suspect is in custody is generally a question of fact . . . and the standard to be applied is whether a reasonable person, innocent of any crime, would have believed that he or she was in police custody. . . . People v Carrier, 248 AD2d 628 (2d Dept. 1998), citing People v Yukl, 25 NY2d 585 (1969). The test is not what the defendant thought, but what a reasonable person, innocent of any crime, would have thought in the defendant's position. Yukl at 589. The factors . . . to be utilized in determining whether an individual is in custody include: (1)the amount of time spent with the police, (2) whether the person's freedom of action was restricted, (3)the location and atmosphere under which the questioning took place, (4) the degree of cooperation exhibited, (5) whether constitutional rights were administered, and (6)whether the questioning was investigatory or accusatory in nature. People v Mosley 196 AD2d 893 (2d Dept. 1993).
In examining these factors, this Court notes that the defendant was at the police station for only a short time, executing this written statement within an hour of his arrival. There is no evidence that his freedom of movement was restricted. The questioning by the detective, while it did occur in the precinct's interview room, was non-threatening in nature and done in the manner of a detective interviewing a crime victim. The defendant was very cooperative. Additionally, the tone of the detective's questioning was one of concern. Clearly, a reasonable person, innocent of any crime, in the defendant's position, would not have thought he was in custody at the time he spoke to and wrote out the first statement. Even though this detective testified he was suspicious of the defendant's story after conferring with the emergency room doctor, there is no evidence in the record that the defendant would not have been free to leave, had he asked. Under these facts and circumstances, this Court finds that the defendant's written statement, to Det. Hiddessen on May 5, 2009 was voluntarily made in a non-custodial environment, without the necessity of such statement being preceded by Miranda warnings. Therefore, suppression of such written statement is denied.
This Court next turns to the defendant's statements, both oral and written, elicited by Det. Davis and Det. Roberts during the early morning of May 6, 2009. The written statement was made after the defendant was advised of his Miranda rights.
The assertion that the oral and written statements may have been involuntary or coerced is without merit. The test for determining when police tactics render a confession involuntary is whether the `deception [is] so fundamentally unfair as to deny due process or that a promise or threat was made that could induce a false confession' . People v Brown , 39 AD3d 886 (3d Dept 2007) citing People v Tarsia, 50 NY2d 1,11 (1980). In interrogating a suspect, police may employ stratagems including misrepresentations. . . . People v Sanabria , 52 AD3d 743 , 745 (2d Dept 2008). This issue is a factual one, governed by the totality of the circumstances. See, eg People v Anderson, 42 NY2d 35 (1977).
It is not an improper tactic for police to capitalize on a defendant's sense of shame or reluctance to involve his family in a pending investigation . . . absent circumstances which create a substantial risk that a defendant might falsely incriminate himself. . . . People v Johnson, 177 AD2d 791,792 (3d Dept. 1991). See also, People v Green 73 AD3d 805 (2d Dept. 2010). There is nothing in this record that demonstrates that the defendant's will was overborne at any time during questioning. See, People v Andujar, 267 AD2d 467,468 (2d Dept. 1999).
In this case, Det. Davis clearly admits that prior to the defendant making his second oral statement and then executing his second written statement, the detective indicated to this defendant that there had been a turn of events in that firearms and drugs and such had been found in his home and that his parents were going to be arrested. The defendant then admitted, in sum and substance, that the property was his. Indeed, it was not unlawful for the police to capitalize on the potential shame of involving the defendant's parents in this investigation, even indicating the possibility of their arrest. The atmosphere remained cordial. This oral statement was not the product of custodial interrogation and there was no necessity that it be preceded by Miranda warnings. As such, this Court finds that the defendant's oral statement to Det. Davis and Det. Roberts was elicited in a lawful fashion. Therefore, suppression of this oral statement is denied.
The defendant then agreed to make a written statement after being advised of his Miranda rights. He was not placed under arrest until after he wrote out this second statement. The defendant's second written statement was voluntary, as it was made . . . following his intelligent, voluntary and knowing waiver of his Miranda rights. People v Vidal , 44 AD3d 802 (2d Dept. 2007). Nor was such statement the product of coercion or threats by the police. Based on the totality of the circumstances, this Court finds that this written statement made by the defendant to Det. Davis and Det. Roberts, was obtained in a lawful fashion. Therefore, suppression of this written statement is denied.
This Court now turns to the lawfulness of the recovery of the physical evidence; specifically the evidence observed in the defendant's bedroom in plain view, the evidence recovered pursuant to the written consent to search, and the evidence recovered from the defendant's mother's bedroom closet as a result of a verbal consent to search.
Turning to the initial entry into the defendant's home, the record reflects that the New York Police Department detectives and Glen Cove police were invited into the residence by the defendant's mother, Mrs. Bagby. When police entered the residence, one detective immediately observed a sawed-off shotgun and called out to a fellow detective. The shotgun was visible and easily seen from the living room, where the police officers and detectives were standing. The door of the defendant's bedroom was open. The police were standing a distance of approximately 10 feet away from the bedroom. As this object, which constituted evidence of a crime, was in plain view, it's seizure was lawful and justified. See, eg People v Jackson, 41 NY2d 146 (1976). People v Dzebolo , 29 AD3d 817 (2d Dept. 2006). See, also Coolidge v Hew Hampshire, 403 US 443 (1991), generally. However, while such immediate seizure would have been lawful, the police acted with the utmost restraint in not immediately seizing this item.
After viewing the sawed-off shotgun through the open door of the defendant's bedroom, the Glen Cove police officers began to discuss the possibility of agreeing to sign a written consent to search form with Mrs. Bagby and Mr. Martone. As noted previously, each signed a written consent form. (This Court notes that while the written consent forms indicated the scope of consent was for the entire premises, the testimony reflected that the understanding between the defendant's mother and police was that the scope of the search would be limited to the defendant's bedroom.)
Governmental intrusion into the privacy of the home is, with limited exceptions, prohibited by constitutional limitations in the absence of a valid search warrant. . . . People v Gonzalez, 39 NY2d 122,127 (1976). One of the limited exceptions to the warrant requirement, and indeed, to the requirement of probable cause, is voluntary consent to search. . . . Gonzalez, supra at 127.
There is a heavy burden on the People to prove the voluntariness of a search. People v Kuhn, 33 NY2d 203 (1973); see also, People v Zimmerman, 101 AD2d 294 (2d Dept. 1984). The question of the voluntariness of the consent to search is a question of fact. Consent to search is voluntary when it is a true act of the will, an unequivocal product of an essentially free and unconstrained choice. Voluntariness is incompatible with official coercion, actual or implicit, overt or subtle. . . . Gonzalez at 128. `Where there is coercion there cannot be consent.' Gonzalez at 128, citing Bumper v North Carolina, 391 US 543,550 (1968).
It is clear that no one fact or circumstance is determinative of the voluntariness of consent. See, Gonzalez, generally. See, Kuhn generally. In People v Buggs, 140 AD2d 617, 617-618 (2d Dept. 1988), the Court held that: The mere number of the police officers in the apartment and the fact that the police officers did not advise the defendant's parents of their right to refuse the consent are not sufficient factors either by themselves or taken together, to negate consent, otherwise freely and voluntarily given. . . . See also, People v Auxilly, 173 AD2d 627 (2d Dept. 1991).
The defendant's mother possessed the requisite authority to consent to the search of the defendant's bedroom. See, Auxilly, supra. See also, People v Huff, 200 AD2d 761 (2d Dept. 1994). [As to the written consent form signed by Mr. Martone, this Court notes that his consent is of no consequence. He was not a lawful party to give consent. See, eg People v Wood, 31 NY2d 975 (1983). The prevailing rule in this and a number of other jurisdictions is that the lessor of real or personal property lacks the requisite authority to consent to a warrantless search of the leased property. . . . People v Ponto, 103 AD2d 573,577 (2d Dept. 1984).]
This Court concludes that the People established, by clear and convincing evidence, that the police entered the house after obtaining the voluntary consent of Mrs. Bagby, the legal tenant. See, People v McClain , 61 AD3d 416 (1st Dept. 2009). The situation herein is similar to McClain where the court held that: The atmosphere was not unduly coercive, and the tenant was cooperative with the police. Moreover, the tenant later gave written consent to a further search in the document that also confirmed the voluntariness of [his] initial consent . McClain at 416. Furthermore, there was an atmosphere of cooperation. No guns were ever drawn. See eg People v Muldrow, 273 Ad2d 814 (4th Dept. 2000). The record establishes that no fraud or deception was employed when the officer asked the defendant's mother if she would consent to a search. People v Williams, 278 AD2d 150,151 (1st Dept. 2000). Defendant's mother reasonably appeared to have authority to consent to the search of defendant's room in the family's apartment. . . . Williams supra at 151. Based on all the facts and circumstances of this case, this Court concludes that . . . the People established that, under the totality of circumstances, the written consent to search . . . signed by the defendant's mother was freely given and not the product of any unlawful police conduct. . . . People v Hill, 260 AD2d 216 (1st Dept. 1999). As such, the physical evidence recovered from the defendant's bedroom was lawfully obtained following the initial consent to enter the house, the observation of the weapon in plain view and subsequent written consent to search the premises, which was restricted to the defendant's bedroom. Therefore, suppression of such physical evidence is denied.
This Court now turns to the issue of the lawfulness of the second search, to with that of the defendant's mother's bedroom closet.
It is well-settled that: A consent to search an area need not be express; it may be established by word or deed. . . . People v Updike, 125 AD2d 735,737 (3d Dept. 1986).
The record reflects that when the Glen Cove police returned to the residence, within an hour or two after the first search, they apprised the defendant's mother of the new circumstances; that they has learned that there was a second weapon in her house, specifically a gun in her bedroom closet. While she refused to retrieve it for them, she expressively told them that they could get it themselves. The police only then entered the premises, proceeded to the closet in the bedroom that the defendant had described and retrieved the gun. Without searching further, they left the premises with the weapon.
Based on the defendant's mother's verbal consent to retrieve the gun from her bedroom closet, the officers were entitled to believe that they had permission to enter, search for, and retrieve this weapon. See, Gonzalez, supra; Auxilly, supra. Such verbal consent by the defendant's mother was given when the officers appeared at her door and this Court concludes that such consent was willingly and voluntarily given. Under these facts and circumstances, it is clear to this Court that the search and seizure of this gun was lawful. Therefore, suppression of this physical evidence is denied.
As this Court has previously determined that the actions of the detectives in eliciting all of the defendant's statements were lawful and that the seizures of the property from the defendant's residence were proper, this Court finds that there is no legal basis to suppress any of this evidence as the product of an unlawful arrest. See eg, Dunaway v New York, 445 US 200 (1979).
Accordingly, the defendant's motion to suppress his statements and to suppress the physical evidence recovered herein is denied in all respects.
The foregoing constitutes the order, opinion and decision of this court.