Opinion
2015-07-01
The PEOPLE, etc., respondent, v. Sean GARVIN, also known as Anthony Garvin, appellant.
Lynn W.L. Fahey, New York, N.Y. (Tammy Linn of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Danielle S. Fenn of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Tammy Linn of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Danielle S. Fenn of counsel), for respondent.
PETER B. SKELOS, J.P., RUTH C. BALKIN, L. PRISCILLA HALL, and JOSEPH J. MALTESE, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lewis, J.), rendered September 20, 2012, convicting him of robbery in the third degree (four counts) and attempted robbery in the third degree, after a nonjury trial, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress physical evidence and his postarrest statements to law enforcement officials.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, his arrest did not violate his rights under Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 and People v. Levan, 62 N.Y.2d 139, 144, 476 N.Y.S.2d 101, 464 N.E.2d 469. “The rule announced in Payton and applied in Levan is clear and easily understood: a person enjoys enhanced constitutional protection from a warrantless arrest in the interior of the home, but not on the threshold itself or the exterior” ( People v. Gonzales, 111 A.D.3d 147, 153, 972 N.Y.S.2d 642; see Payton v. New York, 445 U.S. at 590, 100 S.Ct. 1371; People v. Reynoso, 2 N.Y.3d 820, 821, 781 N.Y.S.2d 284, 814 N.E.2d 456). As pertinent to this case, where the defendant lived in the upstairs apartment of a building containing two separate apartments, there is clearly a “distinction between homes and common areas such as halls and lobbies ... which are not within an individual tenant's zone of privacy” ( Mauceri v. County of Suffolk, 234 A.D.2d 350, 350–351, 650 N.Y.S.2d 788, citing United States v. Holland, 755 F.2d 253, 255–256 [2d Cir.]; see People v. Funches, 89 N.Y.2d 1005, 1007, 657 N.Y.S.2d 396, 679 N.E.2d 635; People v. Allen, 54 A.D.3d 868, 869, 865 N.Y.S.2d 231).
Here, the hearing evidence demonstrated that the police entered the building the defendant lived in through the front door. Thereafter, they passed through a vestibule before climbing the stairs to the defendant's upstairs apartment. One of the officers knocked on the closed apartment door, the defendant opened it, and the officer effectuated the arrest in the doorway. The arresting officer did not go inside the defendant's apartment ( cf. People v. Gonzales, 111 A.D.3d at 148–153, 972 N.Y.S.2d 642), or reach in to pull the defendant out ( cf. People v. Riffas, 120 A.D.3d 1438, 994 N.Y.S.2d 136). Since the defendant was arrested at the threshold of his apartment, after he “voluntarily emerged [and thereby] surrendered the enhanced constitutional protection of the home” ( People v. Gonzales, 111 A.D.3d at 152, 972 N.Y.S.2d 642), his warrantless arrest did not violate Payton and Levan ( see People v. Reynoso, 2 N.Y.3d at 821, 781 N.Y.S.2d 284, 814 N.E.2d 456; People v. Hansen, 290 A.D.2d 47, 52–53, 736 N.Y.S.2d 743, affd. 99 N.Y.2d 339, 756 N.Y.S.2d 122, 786 N.E.2d 21). Accordingly, the hearing court properly denied those branches of the defendant's omnibus motion which were to suppress physical evidence and his postarrest statements to law enforcement officials as the fruits of an illegal arrest ( see generally Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441).
The Supreme Court providently exercised its discretion in sentencing the defendant as a persistent felony offender ( seePenal Law § 70.10[2]; People v. Boney, 119 A.D.3d 701, 702, 989 N.Y.S.2d 137; People v. Dixon, 107 A.D.3d 735, 736, 967 N.Y.S.2d 87; People v. Bazemore, 100 A.D.3d 915, 953 N.Y.S.2d 887). The court's conclusion that the nature of the defendant's criminal conduct, his history, and his character warranted extended incarceration and lifetime supervision is supported by the record ( see People v. Dixon, 107 A.D.3d at 736, 967 N.Y.S.2d 87; People v. Bazemore, 100 A.D.3d at 915, 953 N.Y.S.2d 887).
The defendant's remaining contentions are without merit or need not be reached in light of our determination. SKELOS, J.P., BALKIN and MALTESE, JJ., concur.
HALL, J., dissents, and votes to reverse the judgment, on the law and the facts, grant those branches of the defendant's omnibus motion which were to suppress physical evidence and his postarrest statements to law enforcement officials, and order a new trial.
“On a motion by a defendant to suppress physical evidence, ‘the People have the burden of going forward to show the legality of the police conduct in the first instance’ ” ( People v. Spann, 82 A.D.3d 1013, 1014, 918 N.Y.S.2d 588, quoting People v. Whitehurst, 25 N.Y.2d 389, 391, 306 N.Y.S.2d 673, 254 N.E.2d 905). Upon my review of the record, I find that the People failed to meet this burden. Accordingly, I respectfully dissent.
At the suppression hearing, the People failed to present sufficient evidence to show, in the first instance, that the police entry into the building where the defendant lived was lawful. There was no evidence presented as to how the police officers entered the building. Although a police officer testified that the building was a “two-family house,” there was no testimony that the police officers believed the building to be a two-family house prior to entering it. Furthermore, there was no evidence that the subject building was in any way distinguishable from a one-family house. Based on my reading of the hearing testimony, it can be reasonably inferred that the subject police officer testified that the building where the defendant lived was a “two-family house” based on his observations from inside the building, not from its outward appearance.
Under these circumstances, it is my opinion that the People failed to meet their burden of going forward to show the legality of the police conduct in the first instance. That is, the People failed to show that the police entry into the building where the defendant lived was lawful.
Accordingly, I find that those branches of the defendant's omnibus motion which were to suppress physical evidence and his postarrest statements to law enforcement officials should have been granted ( see People v. Garriga, 189 A.D.2d 236, 596 N.Y.S.2d 25). I further conclude that the error described herein was not harmless beyond a reasonable doubt ( see People v. Alston, 122 A.D.3d 934, 936, 997 N.Y.S.2d 160).