Opinion
8422/17
11-13-2019
The PEOPLE of the State of New York, Plaintiff, v. Dwayne BLACKWOOD, Defendant.
Appearing on Behalf of the Defendant: Christopher Booth, Esq., Lipman & Booth LLC, 11 Broadway, Suite 1054, NY, NY 100004, (212) 363-6969 Appearing on behalf of the People: Assistant District Attorneys Bernarda Villalona and Dmitriy Povazhuk, Office of the District Attorney, Kings County, 350 Jay Street, Brooklyn, NY 11201, (718) 250-3388
Appearing on Behalf of the Defendant: Christopher Booth, Esq., Lipman & Booth LLC, 11 Broadway, Suite 1054, NY, NY 100004, (212) 363-6969
Appearing on behalf of the People: Assistant District Attorneys Bernarda Villalona and Dmitriy Povazhuk, Office of the District Attorney, Kings County, 350 Jay Street, Brooklyn, NY 11201, (718) 250-3388
Jill Konviser, J.
On October 11, 2017, Suzette Troutman accompanied Dwayne Blackwood and Howard Morris to the home of one-hundred-year-old Ethlin Thompson and ninety-one-year-old Waldiman Thompson, a married couple for whom Troutman had been hired as a caregiver. Troutman gave Blackwood and Morris keys to the elderly couple's home and waited outside. Blackwood and Morris then entered the Thompsons' home, tied and gagged them, threatening to kill them if they screamed. Blackwood and Morris located a large amount of cash in a lockbox where Troutman had told them to search. The two men took the cash and lockbox, and other property, and left behind Ethlin and Waldiman — still bound and gagged. Troutman, Blackwood and Morris, together, fled the scene. One-hundred-year-old Ethlin managed to wriggle free of her restraints and call for help. Waldiman, while bound and gagged, suffered a heart attack and died.
The foregoing summary is based on Ethlin Thompson's testimony at a conditional examination conducted by this Court, the Supreme Court file, and the detailed plea allocution of co-defendant Howard Morris, inter alia . As Ethlin and Waldiman share the same last name, they will be referred to by their first names herein, respectfully.
The Instant Hearing
On February 7, 14, 21, 25, and 26, 2019, this Court conducted a combined Payton Mapp and Wade hearing. Detectives Tomas Reyes, Christopher Dukes, Joseph Brunetti and Matthew Lamendola, and retired Detective Walton Richardson testified for the People. Nadine Brown, Devon Anderson, Angella Pringle Morgan, Marcia Anderson, and Frank Piazza testified for the defendant. On March 27, 2019, the parties submitted written memoranda and made oral argument to the Court. The defendant's motion is granted in part and denied in part. The Court makes the following findings of fact and conclusions of law.
The delay in rendering a decision in this matter, orally rendered on November 13, 2019, was due in part to the Court's inability to view the digital evidence in the format it was provided and the unavailability of the parties for significant personal reasons.
Findings of Fact
Detective Tomas Reyes, of the New York Police Department, testified that he is currently assigned to the 81st Precinct Detective Squad. He was assigned as the lead investigator into a murder that had taken place on October 11, 2017, at approximately 3:30 p.m. at 160 Decatur Street in Brooklyn, near the intersection with Marcus Garvey Boulevard.
Shortly after the incident, Reyes responded to the scene. Both complaining witnesses — Ethlin and Waldiman Thompson — were present at the scene, their home, and Waldiman, who was unresponsive, was being treated by EMS. Reyes, however, did interview Ethlin who informed him that two men, whom she did not recognize, entered their home. One of the men approached her while the other man approached her husband, Waldiman. The man who grabbed Ethlin put a hand over her mouth and said don't scream or I will kill you. That man had large hands, a deep voice, and a "Caribbean or Jamaican" accent. Reyes learned that multiple items had been taken from the home including a large sum of money in a lockbox—Ethlin described that lockbox to him.
Reyes later learned that Waldiman had passed away that same day.
The following day, October 12, 2017, Reyes went to Kings County Hospital where Ethlin had been admitted for treatment. Ethlin's brother, Garfield Pringle, was present in her hospital room when Reyes arrived. Pringle explained to Reyes that he had recently met Suzette Troutman at a restaurant in the Bronx where they both worked. Troutman told Pringle that her family name was also Pringle, and that it was possible they were related. When Pringle told Troutman about his elderly sister, Ethlin, and her husband, Waldiman, Troutman said that she could take care of them. Ethlin and Waldiman subsequently hired Troutman as their caregiver.
Reyes later canvassed the area surrounding the Thompsons' home to locate any video surveillance recordings. He retrieved a relevant recording from a nearby bodega. On that video, Reyes observed two men approach the Thompsons' home approximately thirty minutes before the robbery and murder and walk towards the bodega just after the murder. One of the men carried a lockbox that appeared similar to the lockbox described to him that had been taken from the Thompsons' residence. The other man carried a backpack with distinctive markings and wore Adidas slide-style sandals. Reyes was able to recover a second video recording that showed the same man from the bodega video carrying the same lockbox, approximately ten to fifteen minutes after the robbery and murder. A third video recording showed the same two men get into a black SUV shortly thereafter and within a few blocks of the Thompsons' residence. Reyes later learned that a black SUV had been observed in the immediate vicinity of the Thompsons' home at the time of the robbery and murder.
A DVD compilation of the video surveillance recordings was entered into evidence at the hearing as People's Exhibit #6.
On October 16, 2017, Reyes interviewed Troutman, who denied any involvement in the crime. He showed her a still photograph taken from the video recording obtained from the bodega. Troutman told Reyes that the man in the photograph with the backpack and wearing the Adidas sandals was her nephew, Dwayne Blackwood, but that she did not recognize the man carrying the lockbox. On October 17, 2017 at 5:00 a.m., Reyes issued a probable cause I Card for the arrest of Dwayne Blackwood—the defendant.
The photograph was entered into evidence at the hearing as People's Exhibit #3. The other man in the picture was later identified as co-defendant Howard Morris.
Also on October 17, 2017, Reyes prepared a photo array with the defendant's photo in position number one. Retired Detective Walton Richardson testified that on October 17, 2017, he was assigned to the 73rd Precinct. On that day, he received a request from the 81st Precinct to conduct a blind photo array in a homicide investigation of which he had no knowledge. A detective from the 81st Precinct provided him with the photo array, array instructions and the photo array report—in Spanish. On that same day, October 17, 2017, Richardson met with Witness No.1. He read Witness #1 the instructions and then handed an envelope containing the photo array to the witness. Witness #1 looked at the photo array. Richardson asked Witness #1 if he recognized anyone and Witness #1 replied, yes, and indicated the person depicted in position number one. Richardson asked from where the witness recognized the individual in photograph number one and Witness #1 replied that he was the same person he observed at Decatur Street and Marcus Garvey Boulevard around the time of the crime.
The photo array, the photo array instructions and the photo array report were entered into evidence at the hearing as People's Exhibit #s 7, 8, and 9, respectively, and Richardson translated the documents into English for the Court. Richardson explained that he had conducted the photo array in Spanish to accommodate the viewing witness.
As the witness was the subject of a previously issued protective order, the witness was referred to at the hearing as Witness #1, without objection.
Detective Christopher Dukes testified that he is currently assigned to the NY/NJ Regional Fugitive Task Force. Reyes told Dukes that the defendant had been involved in a homicide that had taken place on October 11, 2017 at 160 Decatur Street in Brooklyn. Dukes, who was assigned to assist Reyes in apprehending the defendant, learned that the defendant was believed to reside in an apartment building located at 856 Elton Street in Brooklyn. On October 19, 2017 at approximately 7:30 p.m., Dukes learned that the defendant's phone, which was being monitored by fellow officers, had been tracked to the inside of 856 Elton Street. Dukes and other officers, therefore, went to that location to apprehend the defendant. Once there, Dukes observed multiple individuals coming and going from what appeared to be a "multi-family ... dwelling."
Photographs of the building were entered into evidence at the hearing as Defendant's Exhibits A-F. 856 Elton Street is a three-story urban row house, it is attached on both sides to nearly identical buildings that appear to span the length of a block. Next to the front door of 856 Elton are the gas meters and the doorbells. There is a light fixture located above the front door and above and to the left of the door is a video surveillance camera.
At approximately 9:00 p.m. that evening—October 19, 2017—Dukes and several other officers approached 856 Elton Street. As Dukes proceeded to the building, he observed a video surveillance camera over the front door. Dukes testified that he did not know the layout of the building, precisely how many individuals were inside, where those individuals were located, whether any of those individuals were armed, and on which floor and in which apartment the murder suspect was located. Concerned, therefore, that someone watching a video feed inside could monitor their movements as they sought to apprehend their target, thereby undermining their safety, the surveillance camera was covered. Dukes observed that the front door through which he had observed individuals coming and going was "cracked open" — he pushed the door open the remainder of the way and entered the building's vestibule. Beyond the building's vestibule was a swinging door, separating the vestibule from the rest of the building, which was propped open. To the left of the vestibule was a stairwell leading up. Inside and to the right, an open door appeared to lead to an apartment on the first floor — the lights were on. Inside, Dukes observed a monitor and DVR unit that appeared to control the video surveillance system. As no one was in the first floor apartment, Dukes and fellow officers went up the building's stairs to the other floors. Dukes and one or two officers went up to an apartment on the third floor, while other officers waited outside of an apartment on the second floor. On the third floor—the top floor—the door leading into the apartment was "opened up very quickly" by a "tall" teenaged boy when Dukes knocked. Dukes asked if the teenager lived there, and he replied that he did. Dukes showed him a picture of the defendant and asked if the man in the picture lived there. The teenager replied that the defendant did live there, in that third floor apartment, but that he was, at the moment, in the second floor apartment. Armed with that information—that the murder suspect was in the second floor apartment—Dukes returned to the second floor where the officers then banged on that door repeatedly, shouting in substance, police, open up. Dukes could hear people inside, but the door was not opened. After "quite a while," however, a girl in her "early teens" did open the door. An older woman was standing behind her in the apartment. Dukes showed the girl the photo of the defendant and asked if he was there. The teen said yes, stepped back from the door, and gestured with her arm, indicating his precise location inside of the apartment—the rear bedroom. Dukes immediately proceeded to that rear bedroom and observed the defendant. As Dukes was aware that the defendant was a suspect in a homicide, he was patted down for safety and handcuffed. Dukes had the defendant come with him and they both stepped out into the second floor hallway, where Dukes removed a cell phone from the defendant, but allowed the defendant to keep his wallet. The defendant was transported to the 81st Precinct where Dukes again searched him, removing his belt and shoelaces—for his safety—and then removing his wallet. Fellow officers remained behind to secure the location while the investigation continued.
Dukes could not recall who covered the camera.
When Dukes first observed the monitor and DVR, both appeared to be powered on. Dukes testified that an officer shut the system off, again for safety reasons, but could not recall if he or another officer did so.
At the hearing, Dukes identified the defendant as the individual he encountered in the rear bedroom of the second floor apartment inside of 856 Elton Street on October 19, 2017.
Reyes later vouchered the defendant's property at the precinct.
Detective Matthew Lamendola, currently assigned to Brooklyn North Homicide, testified that in October of 2017, he was assigned to the 81st Precinct Homicide/Shooting Squad. On October 19, 2017, approximately ten minutes after the defendant's arrest, Lamendola entered 856 Elton Street, which had been secured by fellow officers, to obtain information in connection with an application for a search warrant. Lamendola described the building at 856 Elton Street as having three floors with a stairwell to the left of the vestibule and similar apartments on the second and third floors, with an additional apartment with a different layout on the first floor. Lamendola spoke to the defendant's mother, Angella Pringle Morgan, and the defendant's mother-in-law, Marcia Anderson, in her second floor apartment. Lamendola introduced himself to the women, who were "very willing to talk" — both women were "very accommodating, very nice women." The women did not appear to be frightened and were "very understanding" and "law abiding." Lamendola told the women that the defendant had been taken to the 81st Precinct to speak with detectives about an incident but did not provide details. Lamendola asked Marcia where the defendant lived, and she indicated that he lived in the apartment on the third floor of the building. Lamendola asked if she would "mind showing [him] around," and she agreed to do so. Marcia "took [him] to every floor" of the building. Lamendola did not search any of the apartments. Additionally, as Lamendola too had observed that there were cameras affixed to the outside of the building, he asked Marcia where the surveillance system was located. She told him that the system was in a closet in her son Odean's apartment on the first floor and showed him where the system was located. Lamendola did not touch the system and did not ascertain whether the system was plugged in. Lamendola prepared a partial sketch of the building, to be included with the search warrant application. Lamendola then went to the District Attorney's office, and a prosecutor drafted a search warrant for the building, including, inter alia , the video surveillance system. Fellow officers remained behind to continue to secure the location in anticipation of the search warrant.
Marcia Anderson, her daughter Nadine Brown and her son Devon Anderson, testified at the instant hearing, while her other daughter Tameeka Brown and her other son, Odean Brown, did not. In order to avoid confusion, the witnesses will be referred to by their first names herein, respectfully.
The sketch was entered into evidence at the hearing as People's Exhibit #11.
The search warrant, signed by Judge Walker, was entered into evidence at the hearing as People's Exhibit #12. The defendant has not moved to controvert that search warrant.
Later, sometime after 10:30 p.m. also on October 19th, Detective Joseph Brunetti of Brooklyn North Homicide, arrived at 856 Elton Street, where fellow officers were securing the location. Brunetti was part of a task force also investigating the October 11th murder, robbery, and assault of Waldiman and Ethlin Thompson. Brunetti had viewed surveillance recordings that had been recovered from the vicinity of the crime scene and was tasked with locating any surveillance recordings from 856 Elton Street. It was Brunetti's understanding at this point that the defendant's extended family occupied 856 Elton Street. As he walked up to the front door, he noticed a camera on the outside of the building. Brunetti encountered a woman, later identified as Nadine Brown, by the front door. Brunetti told her he was a police detective and when she told him, in response to his query, that she owned the "building," he asked if he could look at any surveillance recordings. Nadine said yes and told him that the surveillance system was in a closet in the apartment on the first floor. Brunetti followed Nadine into the first floor apartment where she showed him the video surveillance system in a closet. Brunetti examined the surveillance system, plugged it in, and began to search for any recordings that might shed light on the defendant's whereabouts on the day of the homicide. Brunetti, who was aware that a black SUV had been observed in the vicinity of the homicide, observed on the recording a black Nissan Rogue SUV in front of 856 Elton Street and saw three individuals — later learned to be the defendant, Morris, and Troutman — getting out of that SUV on the day of the homicide. At about the same time, Brunetti observed in the first floor apartment's nearby kitchen, a pair of Adidas "slippers," similar to a pair that the defendant was wearing in the video surveillance recordings from the vicinity of the crime scene that he had viewed earlier. Although Nadine had given Brunetti consent to view the video surveillance recordings, after seeing the Adidas slippers, he notified a supervisor and suggested that a search warrant be obtained for the location.
Nadine Brown, the defendant's sister-in-law, testified on behalf of the defendant and verified that she had consented to the search, see infra .
The video additionally showed the co-defendant, Howard Morris, on the day of the robbery and murder, carrying a lockbox in the hallway of 856 Elton Street shortly after the crime.
There is no evidence that Brunetti was aware that Lamendola was already in the process of obtaining a search warrant for the entire building, including any video surveillance recordings.
At approximately 2:00 a.m. the next morning, October 20, 2017, Lamendola, signed search warrant in hand, returned to 856 Elton Street with fellow officers. Lamendola showed Marcia a copy of the search warrant and explained that officers would be searching the building. Lamendola testified that Marcia was "very nice," which, in his experience was, "very rare" when executing a search warrant in someone's home.
Lamendola searched the defendant's apartment on the third floor. In the rear bedroom in front of the closet, Lamendola recovered a backpack with distinctive stripes that appeared to be the backpack worn by the defendant in video surveillance recordings. Inside of that backpack were assorted personal items, cell phones, toiletries, and an identification card with the defendant's name on it. On the first floor, Lamendola recovered a pair of Adidas slide-style sandals that appeared similar to sandals that the defendant was observed wearing in video surveillance recordings. Lamendola then recovered the DVR and related video surveillance equipment from the closet in the first floor apartment.
A photograph of the backpack was entered into evidence at the hearing as People's Exhibit #15.
Detective Reyes later obtained a search warrant for the cell phones. The defendant has not moved to controvert that search warrant.
A photograph of those sandals was entered into evidence at the hearing as People's Exhibit #13.
A photograph of the equipment was entered into evidence at the hearing as People's Exhibit #14.
The Defendant's Case
Nadine Brown testified that she is thirty-five years old and that the defendant, who is married to her sister, Tameeka Brown, is her brother-in-law. Nadine and the defendant bought the multi-unit apartment building located at 856 Elton Street in 2016 — the deed and the mortgage are in both of their names. Nadine's younger brother, Odean Brown, lives in the first floor apartment, and Nadine and her mother, Marcia Anderson, live in the second floor apartment with Nadine's two daughters and Nadine's two nieces. The defendant and Tameeka live in the third floor apartment with their two sons and Nadine's younger brother, Devon Anderson. The first and second floor apartments share an electric bill, a gas bill, and a cable bill — all in Nadine's name. The defendant's home, the third floor apartment, however, has separate electric, gas, and cable bills — all in the defendant's name. Nadine does not have the key to the defendant's third floor apartment and the defendant does not have the key to her second floor apartment. Although Odean lives alone in the first floor apartment, the children sometimes do their homework and watch TV in his apartment and the family uses his kitchen to cook and eat meals. The girls keep their hair supplies in a closet in the first floor apartment — the same closet where the video surveillance control unit is located. That video surveillance unit came with the house when it was purchased in 2016. There is a closet under the stairs just inside the entrance vestibule of the building that can be utilized by the occupants of all three apartments to store household items.
According to Marcia, the family did not use Odean's apartment to cook or eat meals.
Nadine testified that the front yard of 856 Elton Street is enclosed by a decorative wrought iron fence. That fence is kept open as the family does not have a key for it. The screen-type door attached to the front door is generally not locked. Although the front door does have a lock that automatically engages when the door is closed, Nadine could not say if it was closed or locked at the time that the police officers entered the building. The swinging foyer door leading from the vestibule into the first floor hallway is a fire door that swings closed automatically. The door that leads into Odean's first floor home is similar and is kept open and unlocked as Odean does not have the key.
Photos of the sidewalk fence, defendant's Exhibits A and B, show a door with no apparent lock.
According to Angella and Devon, that screen-type door is always kept locked.
According to Marcia, the door does not lock automatically.
According to Marcia, the swinging door inside of the building is always kept open.
According to Marcia, Odean does have a key to his apartment and he keeps his apartment door open.
Devon Anderson testified that on the day that the defendant, his brother-in-law, was arrested, he was seventeen years old and was living with the defendant and his own sister Tameeka, and their two sons, his nephews, in their home on the third floor of 856 Elton Street. Devon's mother, Marcia, his other sister Nadine, Nadine's daughters, and his other nieces, live in the second floor apartment. Devon's brother, Odean, lives in the first floor apartment. The defendant does "not really" use the first floor apartment and Devon has never seen the defendant hold gatherings or entertain friends in that apartment. Devon's nieces and nephews "sometimes" go into that apartment "just ... to watch TV." His mother, Marcia, prepares food in the first floor kitchen and he sometimes eats there with the family. Inside of the first floor apartment is a closet where the video surveillance system is located. Devon has never used that system — it requires a password.
According to Marcia, she did most of the cooking in her own home on the second floor. Nadine, however, testified that Marcia primarily cooked in Odean's kitchen on the first floor.
Nadine did not know if the system required a password.
Shortly before the defendant's arrest, Devon let Marcia, the defendant's mother, into the building, making sure that the front door locked behind her. He went back upstairs to his apartment on the third floor and locked that door. Minutes later, Devon heard banging on his apartment door and someone saying "police." They said, "open it, open it," and Devon opened the door, without looking through the peephole. Three officers told him to put his hands up, and to turn around and face the fridge. Devon complied. The officers did not threaten him to get him to open the door. The officers did not restrain him or search him. One of the officers asked him if he knew the defendant and Devon replied that the defendant was his brother-in-law. The officer asked if the defendant was in the apartment and Devon replied that the defendant was downstairs in the second floor apartment with "his mom." Two of the officers left. Devon stayed upstairs in his apartment with the third officer. That officer chatted with Devon about the basketball game — he did not search the apartment. Shortly thereafter, other family members, who lived in the second floor apartment, came upstairs with other police officers. At some point later, Nadine, his sister, also joined them. Nadine did speak to the officers, but Devon could not hear what was said.
Angella Pringle Morgan testified that she is forty-nine years old and that the defendant is her son. In October of 2017, Angella visited 856 Elton Street on a regular basis. She spent most of her time with the defendant in his home on the third floor, but if the defendant's sons — her grandchildren — were playing on the first floor, she would spend time with them there. The day that the defendant was arrested, October 19, 2017, Angella stopped by the building. She arrived at approximately 8:45 p.m. and went up to Marcia's home on the second floor. Her son, the defendant, joined her there. Inside, too, were Marcia, the defendant's two sons, and Marcia's granddaughters, all four of whom who asleep in their bedroom. At some point, Angella heard someone running up the stairs outside of Marcia's apartment and then "boom, boom" on the apartment door. Someone was "banging very hard" on the door for "maybe a minute." Someone from inside of the apartment asked, who is it, and someone in the hallway shouted "police" and indicated that the fire department would be called to open the door. Angella, who was holding her grandson's hand, stood behind Marcia. Marcia, who was holding "the baby" and appeared to be "scared" and "nervous," opened the door, "but not so wide." A police officer pointed a gun at her, and a woman police officer showed her a shield. One of the officers asked if there were any more children in the apartment and Angella, who was standing by the fridge, said yes, the girls "are in their room," sleeping. The officers pushed open the door and the "marshal police," an African American man, ran straight to Nadine's bedroom, where the defendant had gone alone, pushed open that door, hit the defendant "in the head two time[s]" with his hand and said "surrender or I'm gonna [use] tear gas." The officer then asked if the defendant had a gun and the defendant replied, "I don't have anything." The defendant raised his hands and the officer again hit him "two time[s]." The officer told him to put his hands behind his back, handcuffed the defendant, then immediately went into the defendant's pocket, took out his wallet, and ID and used his cell phone to take a picture of it. The officer then used "indecent language" and put a chain on the defendant's feet, before escorting him out of Marcia's home. The officers did not search or restrain Angella or Marcia. The family all went upstairs to the defendant's home on the third floor. At some point later, Nadine came home and joined them there. Angella did not "witness" an officer talking to Nadine.
The video surveillance recording, Defendant's Exhibit I, belied that testimony as it showed one of those girls, wide awake, in the stairwell shortly after Angella's arrival and just minutes before the defendant's arrest.
Marcia Anderson testified that she is sixty-one years old, and the defendant, who is married to her daughter, Tameeka Brown, is her son-in-law. Marcia lives at 856 Elton Street in an apartment on the second floor of that building. The defendant lives in the same building, in the third floor apartment, with his wife — Marcia's daughter Tameeka — and their two sons, as well as his brother-in-law, Devon Anderson — Marcia's son. Both apartments have their own entrance doors with their own locks, peepholes, and buzzers. Marcia's other son, Odean Brown, lives in the apartment on the first floor. Odean's apartment also has its own entrance door with a lock and a peephole. Marcia's grandchildren, including the defendant's toddler son, play in the staircase of the building. Marcia often cooked for the whole family but used the kitchen in her own apartment to do so. She has, however, on occasion cooked in the first floor kitchen, but the defendant has never eaten a meal there. In fact, Marcia has never seen the defendant inside of Odean's apartment on the first floor. Additionally, neither the defendant nor his sons keep clothing or any other property in Odean's apartment. The surveillance system, that came with the house, was located in a closet in Odean's home, where the "girls" also kept their "hair stuff."
Photographs of Marcia's apartment were entered into evidence at the hearing as Defendant's Exhibits G, H, K, and L.
Nadine and Devon said that Marcia cooked the family's meals in the first floor apartment. Additionally, Nadine testified that the entire family regularly ate their meals in the first floor apartment and Devon testified that the family did so on occasion, while Marcia said that the defendant may never even have been in the first floor apartment.
On October 19, 2017, shortly before the defendant's arrest, Marcia was in the living room of her home on the second floor with the defendant's mother, Angella, and the defendant's two sons. Marcia's four granddaughters were asleep in the front bedroom of her apartment. The defendant was in her kitchen making cup of soup, something he had never done before. Marcia heard a "boom," that she believed to be the sound of "a bunch" of people on the building's stairs. The footsteps continued up to the defendant's third floor home and then returned to the second floor, outside of her apartment. She then heard "hard" knocking on her front door and someone saying, police, open the door, or the fire department would come open it. Marcia, who was "shaking," did not open the door "for a little while." Marcia then went to the door, "turn[ed] the lock" and "pull[ed] it slightly." She peered out into the hallway and saw a police officer with a shield and a gun. After she opened the door, several officers "come straight in." She did not try to push the door closed or push the officers out of the apartment. Marcia did not invite the officers in, they "just push and come in." Angella, who was holding the defendant's infant son, was standing near the kitchen. The defendant, who by this point had left the kitchen, was alone in Nadine's bedroom in the rear of her apartment.
Although Angella testified similarly — that the girls were all sleeping — the video surveillance recording showed otherwise.
Marcia and her grandson then went up to the defendant's home on the third floor, where they sat in the living room with Devon. Marcia, who suffers from high blood pressure and was "still shaking," told the officer that she needed to go downstairs to her apartment to get her medication, and she was able to retrieve it. Her four granddaughters were still sleeping in the front bedroom.
See n. 30.
On October 19, 2017, the day that the defendant was arrested, Nadine came home from her job with the New York Department of Correction at approximately 11:00 p.m. An officer accompanied her into the building and had her join the rest of her family in the defendant's apartment on the third floor. Sometime later, one of the officers asked Nadine who owned the video surveillance unit and she explained that she had bought it with the house. The officer asked if he "could have a look at it" and she responded, "sure you can have a look at it." Nadine could not recall whether she showed him where the equipment was located. Nadine did not know how to use the equipment and did not know if a password was required to use it. She did, however, believe that the system was working properly. Nadine did not recall if she had had any discussion with any police officer about a password for the system. Nadine reiterated that she told the officer "sure" when he asked if he could look at it.
Nadine identified herself on the video surveillance recordings from the night of October 19, 2017, entering the building accompanied by a detective. Nadine could not recall if that detective was the same officer to whom she later spoke about the surveillance system.
The day after the defendant's arrest, when detectives returned to 856 Elton Street, Marcia noticed that the "white strip" on the front door appeared broken. She concluded that the officers had "took it off." A photograph of the doorjamb, Defendant's Exhibit L, showed a rather well-worn door and doorjamb. According to Nadine and Marcia, that photograph was taken after the doorjamb had been repaired. Devon testified that the photograph was taken before the doorjamb had been repaired, although he could not locate the damage on the photograph. Nadine could not recall precisely what damage had been inflicted to the doorjamb. Nadine did not tell the detectives about any damage to the front door. The first person that Nadine told about any damage to the door was the defendant's attorney in response to his question as to whether the front door may have been damaged by the police.
Frank Piazza, a purported expert in forensic video analysis, testified that he attended Berkeley College of Music for two years and Rockland Community College for one year. Piazza's "professional training" was "limited to a few courses" that he "took in the forensic realm about five, six years ago." In 2012, Piazza took a course "mainly focused on audio" and has not "taken any other courses since then" as his "work and life" are "very busy." Piazza previously worked on twenty "cases" involving DVR logs, which "is a growing area right now, where people are very concerned about this."
Piazza's Curriculum Vitae was entered into evidence at the hearing as Defendant's Exhibit J. Piazza conceded that he had erred on that CV — reporting the wrong name and location of a judge before whom he had previously testified. While the Court declined to qualify Piazza as an expert, mindful of the defendant's burden at the hearing, nonetheless, allowed Piazza to testify.
In August of 2018, Piazza went to the District Attorney's office, where he viewed a cloned copy of "the original hard drive" of the surveillance equipment that was recovered from 856 Elton Street. Piazza was permitted "to search the unit, view the logs, confirm that unit was operating properly, [and] export the logs ... to have an opportunity to do some ... comparison of those files." Piazza reached several conclusions. On October 19, 2017 at 9:29 p.m., the four cameras were recording in manual mode. At 9:31 p.m., camera number four was covered. At 9:44 p.m. the unit was "frozen," indicating that the unit was "unplugged." At 11:21 p.m., "the system was turned back on again." At 11:22 p.m., "it powers off and then it powers back on again at 11:27, and at this point, what the logs show me is that someone now has the password to then get into and log into the unit, and be able to control the unit now." At that point, "[t]he logs indicate that there was a search that took place, that someone fast forwarded the unit, someone paused it ... these functions are in the logs showing that that activity did in fact take place."
That cloned hard drive was entered into evidence at the hearing as Defendant's Exhibit I.
On cross examination, however, Piazza conceded that he had "read the log incorrectly." On direct examination, Piazza testified that between 11:21 p.m. and 11:28 p.m., the system had been powered on and off. On cross examination, however, Piazza admitted that the system was in fact continuously powered on during that time. Additionally, on direct examination, Piazza testified that between 11:21 p.m. and 11:28 p.m., someone searched the system. On cross examination, however, Piazza admitted that "no searching took place" during that time. Rather, at 11:28 p.m., "when someone was able to ... log in," then "searching took place." Notwithstanding, Piazza concluded that no recording(s) had been erased from the system, as the log would have so indicated.
Credibility Findings
The defendant contends that the testimony of two of the People's witnesses — Detectives Dukes and Brunetti — was incredible as a matter of law. While testimony may be rejected as incredible as a matter of law when it appears to be "manifestly untrue, physically impossible, contrary to experience, or self-contradictory," People v. Blake , 123 AD3d 838 (2d Dept. 2014), or "tailored to nullify constitutional objections," People v. Thomas , 175 AD2d 852, 853 (2d Dept. 1991), such a conclusion is not warranted here. Indeed, the defendant's memorandum of law characterizes the testimony of the People's witnesses as "implausible ... incredible ... unbelievable ... revisionist ... self-serving ... dubious ... uncorroborated ... incoherent ... inconsistent ... and equivocal." In reaching that conclusion, however, the defendant takes license with the hearing evidence — the People's as well as his own — and unconvincingly marshals facts in a fashion that falters.
Critically, the defendant's wholesale rejection of Detectives Brunetti's and Dukes' testimony, in favor of the testimony of his own witnesses, ignores the telling inconsistencies among his witnesses, most of whom were related to the defendant either directly or through marriage. While the defendant concludes that "[t]here is simply no contest" and that the testimony of his witnesses is the only version of events that "rings true," the Court cannot agree. To be sure, the defendant's evidence provided myriad conflicting accounts: who was asleep in Marcia's apartment at the time of the defendant's arrest; how many were asleep; who owned the Adidas sandals; whether doors were open, ajar, or shut tight; whether doors were locked, unlocked, or capable of being locked, and if locked, how frequently; whether the family possessed the keys to assorted locks; where the defendant's family ate its meals, whether they ate their meals together; if the defendant was ever present in Odean's apartment and/or how often; who showed Lamendola around the building, or not; who spoke to Lamendola or not; how long it took to open Marcia's apartment door after the police began to knock; who opened that door; whether the defendant was placed in ankle chains or handcuffs; whether the defendant was assaulted by the arresting officers or not touched; how often the defendant visited Marcia's apartment; if Nadine spoke to a police officer; whether a password was required to access the surveillance system or not; whether any family member had that password; if the password was used to access the system following the defendant's arrest; if the system had been searched and at precisely what time that searching took place; and, the extent, nature, and/or existence of the alleged damage to the doorjamb. Indeed, despite their concerted efforts to confer standing upon the defendant, the inscrutable testimony of the defendant's extended family, as confused and contradictory as it was — a veritable symphony of discrepancy and dispute — did precious little to elucidate the issues before this Court. By contrast, the testimony of the People's witnesses, while variant at times, was neither manifestly untrue, physically impossible, nor contrary to experience. Indeed, the salient issue of the testimony — consent to access the third floor, the first floor, and the video surveillance recordings — was corroborated in large part by the defendant's witnesses despite the cacophony of their confusion.
So, too, the testimony of the defendant's so-called expert, through whom he sought to undermine the police testimony and prove that the damning video had been tampered with or destroyed, was soundly discredited on cross examination. To be sure, the defendant's expert was forced to concede that he had misread the usage log of the video surveillance system and admitted altogether that the log showed exactly zero evidence of tampering. Indeed, the expert's testimony with respect to the precise issue for which he was called, was a heap of misinformation.
Based, therefore, on the testimony of the witnesses and their interest — or lack thereof — in the outcome of the proceedings, and following a scrupulous review of that testimony, including the nature and extent of the inconsistencies among the witnesses, the Court does not find Detectives Brunetti and Dukes incredible as a matter of law, credits the People's witnesses, and concludes as follows.
Conclusions of Law
Spoliation/Brady/Sanctions
The defendant seeks suppression of the evidence, including the video surveillance recordings obtained from 856 Elton Street, and urges this Court to "penalize" the police for their "official misconduct," as, he argues, the police tampered with and destroyed those video surveillance recordings in violation of the spoliation doctrine. The defendant's argument must be rejected. Indeed, the defendant's own "expert" was forced to concede on cross examination that no such tampering or destruction took place. Moreover, with respect to any alleged spoliation, there is simply no reason to believe that Dukes and his fellow officers covered the video surveillance camera and shut down the surveillance system for nefarious purposes. Rather, they did so to protect themselves while attempting to apprehend one of three potentially dangerous, possibly armed, murder suspects in a busy multi-unit building with an unfamiliar layout and an unknown number of occupants. To the extent that the defendant is arguing that Dukes and his colleagues might have destroyed Brady material by covering the camera, the defendant fails to provide any basis for so suggesting. Indeed, that the video surveillance recordings from 856 Elton Street on the evening of his arrest , could have constituted Brady material for a crime alleged to have been committed on a different day, in a different location, is wholly speculative. See People v. Schlau , 117 AD3d 461 (1st Dept. 2014) ; People v. Finley , 190 AD2d 859 (2d Dept. 1993) ; compare People v. Ulett , 33 NY3d 512 (2019) ; People v. Handy , 20 NY3d 663 (2013). The defendant's motion to suppress in that regard, therefore, is denied.
As to the defendant's related Mapp motion, see infra .
Payton
The Front Door of 856 Elton Street
It is axiomatic that, absent certain exceptions, the police may not enter an individual's home to make a warrantless arrest. Payton v. New York , 445 U.S. 573 (1980) ; see also People v. Roe , 73 NY2d 1004 (1989). In order to establish a Payton violation, however, a defendant must first demonstrate standing in the location of the arrest. See People v. Rodriguez , 69 NY2d 159 (1987). Of course, an individual does not have an expectation of privacy, and, therefore, lacks standing in the common areas of an apartment building. See e.g. People v. Garvin , 130 AD3d 644, 645 (2d Dept. 2015) ; People v. Allen , 54 AD3d 868 (2d Dept. 2008) ; People v. Washington , 287 AD2d 752 (2d Dept. 2001). Although, where the building is a smaller, brownstone-type building, an individual may have a greater expectation of privacy in common areas. See People v. McCurdy , 86 AD2d 493 (2d Dept. 1982). A defendant, however, still bears the burden of demonstrating a greater expectation of privacy in those common areas in order to establish standing. See People v. Rodriguez , 69 NY2d 159 (1987).
Here, the particular manner in which the defendant and his extended family used the common areas of the building at 856 Elton Street — the vestibule, stairwell, and hallway — effectively rendered the building more akin to a brownstone than an apartment building. Indeed, the evidence suggested that the defendant's extended family treated the common areas of the building as a communal space — children played in the stairwell; household supplies were stored in a vestibule closet. This rather unique living arrangement, therefore, arguably afforded the defendant a reasonable expectation of privacy in the common areas of the building. That arrangement, however, was not readily apparent when Dukes and his colleagues initially approached the apartment building, abuzz with activity, in search of their murder suspect. To be sure, Dukes had no reason to believe that the defendant enjoyed an expectation of privacy in the common areas of that building. Indeed, the doorbells and gas meters and the foot traffic easily supported the conclusion that the location was more apartment building than brownstone-type home. Nevertheless, based on the defendant's demonstration of standing in the vestibule, hallway, and stairwell, flimsy as it were, the Court is constrained to conclude that when Dukes and his colleagues entered the vestibule of 856 Elton Street, they unwittingly committed a Payton violation.
The Court's Payton analysis, however, does not end there. Although the defendant's family may have treated the vestibule, hallway, and stairwell with some degree of communality, affording the defendant a reasonable expectation of privacy in those areas, the evidence also made plain that the three separate apartments at 856 Elton Street were precisely that — separate. To be sure, there was no evidence to suggest that the defendant and his extended family treated 856 Elton Street like a single family home. Indeed, by all accounts, the defendant lived in the third floor apartment of 856 Elton Street with his wife and children. His mother-in-law lived in a separate home — the second floor apartment — with her other daughter and her granddaughters. See People v. Hornedo , 303 AD2d 602 (2d Dept. 2003). Each apartment had its own kitchen, bathroom, bedrooms, and living room. See People v. Adames , 168 AD2d 623 (2d Dept. 1990). So, too, each apartment had its own entrance door, complete with a functioning lock, peephole, and buzzer. In fact, the defendant's witnesses testified that they made use of those individual locks and peepholes on the night of the defendant's arrest. Further, the defendant did not have a key to his mother-in-law's home and his mother-in-law did not have a key to his home. See People v. Leach , 90 AD3d 1073 (2d Dept. 2011). Additionally, the second and third floor apartments did not share utilities — electric, gas and cable — and the defendant, solely responsible for his home's utility bills, did not pay or contribute to the second floor apartment's utility bills. See People v. Ortiz , 190 AD2d 580 (1st Dept. 1993). Moreover, the defendant did not keep any of his belongings in his mother-in-law's apartment and was not an overnight guest in her apartment. See People v. Kennedy , 284 AD2d 346 (2d Dept. 2001). The building itself had no shared living space. In fact, the shared space was confined to the vestibule, hallway, and stairwell. The defendant, therefore, entirely lacks standing in his mother-in-law's separate second floor home, and, accordingly, has no grounds to object to his warrantless arrest inside of her apartment. See People v. Walker , 150 AD2d 408 (2d Dept. 1989) compare People v. Ramos , 206 AD2d 260 (1st Dept. 1994).
So, too, the defendant's brother-in-law, Odean, lived in a separate apartment on the first floor, see Mapp discussion, infra .
Further, the defendant's warrantless arrest was sufficiently attenuated by significant intervening factors, see discussion infra .
Not only is it clear that the defendant lacked standing in the apartment in which he was arrested, the People have further demonstrated that the police were given voluntary consent to enter said apartment. See generally People v. Quagliata , 53 AD3d 670 (2d Dept. 2008) ; People v. DePace , 127 AD2d 847 (2d Dept. 1987). To begin, after learning that the defendant was holed up in the second floor apartment, only two or three officers banged on that apartment door while identifying themselves as police officers. See People v. Brown , 234 AD2d 211 (1st Dept. 1996). The adults present in the apartment, aware that it was the police seeking to gain entry, delayed opening the door, giving the defendant an opportunity to secrete himself in a back bedroom, while deliberately using a young teen as their emissary. When Dukes showed that teen a photograph of the defendant, she stepped back from the apartment door and gestured into the apartment with her arm pointed towards the defendant's precise location in a rear bedroom, while two adults in her extended family hovered nearby, clearly communicating consent for Dukes and his colleagues to enter the home. See People v. Xochimitl , 147 AD3d 793 (2d Dept. 2017) ; People v. Bunce , 141 AD3d 536 (2d Dept. 2016) ; People v. Lopez , 104 AD3d 876 (2d Dept. 2013) ; People v. Santornino , 153 AD2d 595 (2d Dept. 1989) ; People v. Schof , (2d Dept. 1988); People v. Davis , 120 AD2d 606 (2d Dept. 1986). To be sure, once the officers stepped inside the apartment, neither Marcia nor Angella, the adult women standing by the teen, nor the teen herself, told the officers that they could not enter, or objected when they did so. See People v. Johnson , 46 AD3d 276 (1st Dept. 2007) ; People v. Gonzalez , 222 AD2d 453 (2d Dept. 1995) ; People v. Schof , 136 AD2d 578 (2d Dept. 1988). The People have demonstrated, therefore, that police entry into the second floor apartment was the product of voluntary consent. See People v. Garvin , 30 NY3d 174 ; People v. Parham , 74 AD3d 1237 (2d Dept. 2010).
While the defendant's witnesses testified that all four of the girls in the apartment had been asleep, they were not. Indeed, that testimony was belied by the video surveillance recording showing one of those girls, who looked to be in her early teens, in the stairwell just before the defendant's arrest. Inexplicably, in his Memorandum of Law, the defendant now asserts that the four girls were playing in their bedroom.
So, too, even if Dukes and his fellow officers inadvertently violated Payton when they entered into the apartment building's downstairs vestibule, the defendant's arrest in his mother-in-law's home, in which he lacked standing, see discussion supra , was "sufficiently distinguished" to purge any illegality. In re Leroy M. , 16 NY3d 243 (2011). In determining whether voluntary consent purges an illegal entry, the court must consider the temporal proximity of the consent, the presence or absence of intervening circumstances, whether the consent was volunteered or requested, whether the defendant was aware he could decline, whether the purpose underlying the illegality was to obtain consent, and the purpose and flagrancy of the official misconduct. Id. at 246.
Here, while consent to enter Marcia's second floor apartment followed rather quickly on the heels of the initial entry, Devon's, the defendant's brother-in-law's, unconstrained cooperation was a significant intervening factor. Indeed, the officers first went up to the third floor apartment where they encountered Devon, who voluntarily opened the door to that apartment that he shared with the defendant and voluntarily answered the questions posed to him, directing the officers to the defendant's mother-in-law's second floor apartment, where he said the defendant could be found. So, too, the voluntary consent of the defendant's niece was a second significant intervening factor. Indeed, consent was ultimately granted not by the defendant himself, the target of the investigation, but rather, his niece, who actually resided in the apartment in which the defendant was located. As his niece, surrounded by adults, opened the door and immediately and voluntarily consented to the entry in one fluid motion, there was simply no reason for the police to call a halt and explain to the adults hovering nearby that they had the right to override the consent that they had just orchestrated by sending her to open the door. Moreover, neither she, nor the adults present in that apartment, objected to their entry. Further, when Dukes and his fellow officers entered the vestibule of 856 Elton Street, a location that they reasonably believed to be an apartment building, their sole purpose was to determine where in that building the defendant, identified as one of the perpetrators of the robbery, murder, and assault, was located. Indeed, the officers watched the location, observing significant foot traffic in and out the front door, and entered only once they had received information leading them to believe that the defendant could be found inside. Finally, there is no evidence that the officers engaged in misconduct, flagrant or otherwise. Rather, their purpose upon arrival at 856 Elton Street was proper and far more finite — arrest the defendant for his role in this violent crime — an arrest for which the police had ample probable cause. See People v. Rong He , 34 NY3d 956 (2019). Nevertheless, the officers did not display an overwhelming show of force, despite having just been informed that the defendant was presently holed up inside of that apartment, with no additional information as to precisely how many individuals were inside the apartment with its unknown layout or whether those individuals were armed. Indeed, by all accounts, they spent several minutes knocking on that apartment door in an effort to gain entry. And, when the door was subsequently opened by a teen pointing to the defendant's location inside of the apartment, an invitation to Dukes and his fellow officers, any possible taint from the initial Payton violation was entirely purged. See People v. Espinal , 161 AD3d 556 (1st Dept. 2018) ; see also People v. Shakeem B. , 55 Misc 3d 47 (App. Term 2d Dept. 2017).
Notably, the officers did not search the building or its three separate apartments and did not remove any property until after obtaining voluntary consent and a search warrant.
While a Dunaway hearing was not ordered, the People demonstrated probable cause for the defendant's arrest. Of course, "[p]robable cause does not require proof to a mathematical certainty, or proof beyond a reasonable doubt." People v. Mercado , 68 NY2d 874, 877 (1986). Rather, it must be "more probable than not that a crime has taken place and that the one arrested is its perpetrator." People v. Carrasquillo , 54 NY2d 248, 254 (1981). Here, a convincing chain of evidence lead the police to conclude that the defendant was involved in the October 11, 2017 murder, robbery and assault of Waldiman and Ethlin and Thompson. Indeed, Detective Reyes learned from the one-hundred-year-old surviving victim, Ethlin, that two men, whom she did not recognize, had entered the home that she shared with her ninety-one-year-old husband, bound and gagged them and left them for dead, while fleeing the home with cash and a lockbox. Reyes gathered video surveillance recordings from the Thompsons' neighborhood, which depicted two men, one of whom was identified as the defendant, in the vicinity of the Thompson home at the time of the murder. And, just minutes after the murder, the defendant and his companion carried a lockbox. The foregoing makes plain that Reyes reasonably concluded that the defendant had played a role in the murder, robbery, and assault.
As the foregoing makes plain, the defendant's arrest in his mother-in-law's home, in which he lacked standing, following his brother-in-law's cooperation, and the voluntary consent of his niece and his mother-in-law, was "sufficiently distinguished" to purge any illegality that may have resulted from the initial police entry into the front door of the building located at 856 Elton Street. In re Leroy M. , 16 NY3d at 243. The defendant's Payton motion, therefore, is denied.
The defendant argues, too, that additional Payton violations were committed by Lamendola and Brunetti, who separately entered 856 Elton Street to assist in the ongoing investigation. Not so. When Lamendola and Brunetti separately entered 856 Elton Street, the defendant had already been arrested and removed from the building. Thus, as fellow officers secured the building, Lamendola was free to obtain information for a search warrant, and Brunetti was free to seek consent from Nadine, who identified herself as the building's owner, to search the video surveillance system — consent that was corroborated, repeatedly so, by Nadine, the defendant's own witness. See People v. Richardson , 155 AD3d 1595 (4th Dept. 2017) ; People v. Lubbe , 58 AD3d 426 (1st Dept. 2009) ; People v. Osorio , 34 AD3d 1271 (4th Dept. 2006) ; People v. Dancey , 84 AD2d 763 (2d Dept. 1981) ; see also attenuation discussion, infra .
The People contend that exigent circumstances also justified the defendant's warrantless arrest inside of 856 Elton Street, but have failed to meet their burden in that regard. See People v. Knapp , 52 NY2d 689 (1981). To be sure, there is no evidence that the defendant was poised to commit an additional crime or posed imminent danger to the other occupants of the apartment — his extended family. See generally People v. Funches , 89 NY2d 1005 (1997) ; People v. Williams , 181 AD2d 474 (1st Dept. 1992) ; People v. Levine , 174 AD2d 757 (2d Dept. 1991) ; People v. Mason , 248 AD2d 751 (3d Dept. 1998).
Mapp
The Property Recovered from the Defendant's Person inside of 856 Elton Street
The defendant moves to suppress a wallet and cellphone that were recovered from him at the time of his arrest inside of his mother-in-law's second floor home. While the Court was constrained to conclude that the initial entry into 856 Elton Street constituted a Payton violation, the Court also concluded that the defendant's lack of standing in his mother-in-law's apartment, the cooperation of his brother-in-law from his third floor apartment, and the subsequent and voluntary consent of his niece and mother-in-law sufficiently attenuated that unlawful entry, see discussion supra . See generally People v. Padilla , 28 AD3d 236 (1st Dept. 2006) ; People v. Jackson , 17 AD3d 148 (1st Dept. 2005) ; People v. Moore , 269 AD2d 409 (2d Dept. 2000). Despite, therefore, the inadvertent and tenuous Payton violation, the defendant's arrest in his mother-in-law's second floor home was lawful and the search of his person incident to that arrest proper. See generally People v. Geddes , 171 AD3d 1210 (2d Dept. 2019) ; People v. Garcia , 132 AD3d 405 (1st Dept. 2015). Accordingly, the defendant's motion to suppress his wallet and cellphone is denied.
Of course, the defendant's property was later vouchered at the police precinct.
The Video Surveillance Equipment and Recordings Recovered from The First Floor Apartment at 856 Elton Street
The defendant further moves to suppress the video surveillance equipment removed from his brother-in-law's first floor apartment at 856 Elton Street and the video recordings subsequently extracted from it. A defendant seeking the suppression of physical evidence bears the burden of establishing standing by demonstrating an expectation of privacy in the place searched. See People v. Ramirez-Portoreal , 88 NY2d 99 (1996) ; see also People v. Ponder , 54 NY2d 160 (1981). In determining whether an individual has an expectation of privacy in the place searched, a court must consider, inter alia , [t]he number of times a person stays in a particular place, the length and nature of the stay, the indicia of connectedness and privacy, like change of clothes or sharing expenses or household burdens." People v. Rodriguez , 69 NY2d 159, 163 (1987). In the instant matter, the defendant has failed to demonstrate standing in his brother-in-law's first floor home.
It bears repeating, see Payton discussion, infra , the defendant, by all accounts, lived in a separate home — the third floor apartment — with his wife and children. There is no evidence that the defendant regularly ate his meals, slept, kept any belongings, or entertained friends in his brother-in-law's apartment. Indeed, there is evidence to conclude that the defendant was never even inside of that apartment. So, too, the defendant was not financially responsible for any utility bills related to that apartment. It also bears repeating, the testimony of the defendant's witnesses, despite their earnest attempts to establish standing in that first floor apartment, was replete with contradictions — Marcia testified that the defendant was never in the first floor apartment for a meal or otherwise, Devon testified that the defendant was rarely in the first floor apartment, and Nadine testified that the defendant frequently ate family meals in the first floor apartment. Even if the defendant and his infant and toddler sons may have occasionally visited the first floor apartment, of which the evidence is unclear at best, such incidental contact is insufficient to confer standing on him. See People v. Gray , 151 AD3d 1470 (3d Dept. 2017) ; People v. Gonzalez , 45 AD3d 696 (2d Dept. 2007) ; People v. Abreu , 239 AD2d 424 (2d Dept. 1997) ; compare People v. Isaacs , 101 AD3d 1152 (2d Dept. 2012) ; People v. Hill , 153 AD3d 413 (1st Dept. 2017). The defendant, therefore, lacks standing.
Despite the defendant's clear lack of standing in the first floor apartment, the uncontroverted hearing evidence demonstrated that Nadine gave express consent to Detective Brunetti to access and search the video surveillance equipment, and that she did so voluntarily. See People v. Gonzalez , 88 NY2d 289 (1996) ; People v. Cosme , 48 NY2d 286 (1979) ; People v. Whitehurst , 25 NY2d 389 (1969) ; see also People v. Quagliata , 53 AD3d 670 (2d Dept. 2008). Indeed, Nadine herself, testifying on the defendant's behalf, repeatedly stated that she had granted permission for the police to access the video surveillance recordings. So, too, Brunetti reasonably relied on Nadine's apparent authority as the owner of the building to consent to a search of the video surveillance equipment. See People v. Jackson , 105 AD3d 866 (2d Dept. 2013) ; People v. Williams , 278 AD2d 150 (1st Dept. 2000). Indeed, Nadine readily informed Brunetti that she owned the building and told him precisely and without hesitation where the video surveillance system was located. See People v. Bran , 82 AD3d 1000 (2d Dept. 2011) ; People v. Kelly , 58 AD3d 868 (2d Dept. 2009). Moreover, she accompanied Brunetti to the first floor apartment and pointed out precisely where the equipment could be found. See generally People v. Xochimitl , 147 AD3d 793 (2d Dept. 2017).
That the defendant may have been, according to his sister-in-law, a co-owner of the building, is of no moment here, as the defendant lived in a home on the third floor separate in every respect, and had little to no discernible connection to his brother-in-law's first floor apartment. Cf. People v. Duval , 179 AD3d 62 (1st Dept. 2019) ; see also People v. Watson , 101 AD3d 913 (2d Dept. 2012).
Notably too, Brunetti's viewing of the video surveillance recordings was sufficiently attenuated to purge any illegality. In determining whether the recovery of physical evidence is sufficiently attenuated from an unlawful entry, a court must consider, again, "the temporal proximity of the consent to the arrest, the presence or absence of intervening circumstances, whether the police purpose underlying the illegality was to obtain the consent or the fruits of the search, whether the consent was volunteered or requested, whether the defendant was aware he could decline to consent, and particularly, the purpose and flagrancy of the official misconduct." People v. Borges , 69 NY2d 1031, 1033 (1987) (internal citations omitted).
Here, consent to access the recordings located in the first floor apartment was granted hours after the police entered 856 Elton Street and by the defendant's sister-in-law, Nadine, who owned the building, and who had not been present in the building at the time of the defendant's arrest. Moreover, there were myriad other intervening factors — Devon voluntarily informing the police where the defendant lived and could then be located, the voluntary consent of the defendant's niece and mother-in-law to enter their home, the defendant's removal from the building, the change in police personnel, and, by all accounts, the respectful and courteous manner in which the police treated the defendant's extended family. Additionally, the uncontradicted hearing evidence established that Dukes and his fellow officers arrived at 856 Elton Street not to gather potentially damning evidence, but rather to arrest the defendant — an arrest for which the police had ample probable cause. And, it bears repeating, Nadine unequivocally testified that she voluntarily consented to a search of the video surveillance recordings. While Nadine was never informed that she had the right to refuse to consent, her testimony made plain that she was altogether accommodating and had given her consent swiftly and voluntarily. Finally, again, there is no evidence that the officers engaged in any misconduct, flagrant or otherwise. Thus, Brunetti's search of the video surveillance recordings was sufficiently attenuated from any possible unlawful entry. See e.g. People v. Coles , 117 AD3d 1468 (4th Dept. 2014) ; People v. Ortiz , 59 AD3d 350 (1st Dept. 2009) ; compare People v. Isaacs , 101 AD3d 1152 (2d Dept. 2012).
Again, the defendant has no standing in his brother-in-law's first floor apartment, see infra . In any event, that Dukes and his colleagues previously entered that apartment is of no moment, as the officers were entitled to conduct a protective sweep of it. See generally People v. Bryant , 91 AD3d 558 (1st Dept. 2012) ; People v. Eddo , 55 AD3d 922 (2d Dept. 2008) ; People v. Febus , 157 AD2d 380 (1st Dept. 1990).
The defendant's family was respectful and courteous in kind.
That Lamendola, in an abundance of caution, ultimately obtained a search warrant pursuant to which the video surveillance equipment was removed from the first floor apartment is beside the point. Indeed, the uncontradicted hearing evidence makes clear that Nadine had already voluntary granted Brunetti access to that equipment. And, the defendant has not moved to controvert that search warrant.
Notably, Dukes observed the video surveillance camera on the outside of 856 Elton Street above the front entrance door to the building, before he or any other officer entered the building in violation of Payton .
Accordingly, the defendant's motion to suppress the video surveillance recordings is denied.
Physical Property Recovered from 856 Elton Street, Pursuant to Search Warrant (Video Surveillance Equipment and Recordings, Adidas sandals, Backpack and its Contents)
Having failed to file a motion to controvert the search warrant for 856 Elton Street, the defendant was not entitled to a hearing with respect to the physical property recovered pursuant to that warrant. See e.g. People v. Meller , 68 AD3d 671 (1st Dept. 2009) ; People v. Cusumano , 108 AD2d 752 (2d Dept. 1985). Nevertheless, the defendant now moves to suppress that evidence. Specifically, the defendant argues that Lamendola failed to inform the issuing court that Brunetti had been given consent to access and search the video surveillance recordings, and that that alleged omission constitutes a deliberate falsehood and/or reckless disregard for the truth. Not so. Indeed, the record is silent as to whether Lamendola was even aware that Nadine had consented to Brunetti's viewing of those recordings. In any event, it is unclear how that information, otherwise unrelated to a finding of probable cause, could have impacted the reviewing court's decision to issue the warrant. See generally Franks v. Delaware , 438 U.S. 154 (1978) ; People v. Slaughter , 37 NY2d 596 (1975) ; see also People v. Darbasie , 128 AD3d 489 (1st Dept. 2015) ; People v. McGeachy , 74 AD3d 989 (2d Dept. 2010) ; People v. Rhodes , 49 AD3d 668 (2d Dept. 2008). Moreover, that the police may have been granted voluntary consent to search, does not prohibit them from seeking to obtain a search warrant in an abundance of caution. See generally People v. Velasquez , 110 AD3d 835 (2d Dept. 2013) ; People v. Yuruckso , 297 AD2d 299 (2d Dept. 2002). Accordingly, the defendant's motion is denied.
Of course, the defendant lacks standing in the first floor apartment, see discussion supra . So, too, the eventual recovery of the evidence was both attenuated and sufficiently removed from the earlier Payton violation so that suppression is not warranted. See People v. Arnau , 58 NY2d 27 (1982) ; People v. Coles , 117 AD3d 1468 (4th Dept. 2014) ; People v. Boyson , 105 AD3d 1364 (4th Dept. 2013) ; People v. Moore , 269 AD2d 409 (2d Dept. 2000).
Wade
The Photo Array
The defendant moves to suppress a photo array identification of him by Witness #1. As the uncontradicted hearing testimony and the photo array itself demonstrate that the photo array was devoid of suggestion, the defendant's motion is denied.
As the photo array preceded the defendant's arrest, the subsequent Payton violation has no bearing on its admissibility.
The photographs in the photo array depict individuals who closely match the physical characteristics of the defendant, including approximate age, skin tone, hair style, and facial hair. See generally People v. Lipton , 162 AD3d 1070 (2d Dept. 2018) ; People v. Johnson , 165 AD3d 1168 (2d Dept. 2018) ; People v. Owens , 151 AD3d 520 (1st Dept. 2017). Moreover, there is no evidence that the manner in which the photo array was conducted was suggestive. Indeed, the photo array was a blind one — the administering detective, now-retired Detective Richardson, did not know the identity of the suspect, or the number of that suspect's photo in the photo array. Richardson, nevertheless, took additional precautions to ensure the fairness of the photo array, including reading the witness standard instructions from a pre-printed form in the witness's native language.
Based on the foregoing, the defendant's motion to suppress the photo array identification is denied.
Conclusion
This constitutes the Decision and Order of this Court.