Opinion
No. 2013–1404 N CR.
10-21-2015
The PEOPLE of the State of New York, Appellant, v. Trelane HESTER, Respondent.
Opinion
Appeal from an order of the District Court of Nassau County, First District (Anthony W. Paradiso, J.), dated June 10, 2013. The order granted defendant's motion, after a hearing, to suppress evidence of observations of defendant by police, on the ground that his arrest was unlawful.
ORDERED that the order is reversed, on the law, defendant's motion to suppress observations of defendant by police is denied, and the matter is remitted to the District Court for all further proceedings.
In connection with an outstanding charge against defendant of endangering the welfare of a child (Penal Law § 260.101 ), the District Court (Terence P. Murphy, J.) issued an order of protection, which, among other things, directed defendant to stay away from his wife and his son. The order indicated on its face that it had been requested by defendant's wife.
Defendant moved to suppress the police observations of defendant on the roof of a three-unit apartment building in which defendant's wife and children resided, on the ground that he had been unlawfully arrested in his home, in contravention of Payton v. New York (445 U.S. 573 1980 ). The District Court denied the motion on the ground that defendant lacked standing to seek to suppress intangible evidence, relying on People v. Robinson (205 A.D.2d 836 1994 ). Defendant then moved to suppress the police observations on the ground that he had been unlawfully arrested without probable cause, pursuant to Dunaway v. New York (442 U.S. 200 1979 ). The District Court granted the motion to the extent of directing that a Dunaway hearing be held. The testimony at the Dunaway hearing established the following:
On March 27, 2013, Floral Park Police and a representative of the Nassau County Department of Child Protective Services conducted a “welfare check” at an apartment on the top floor of a three-unit apartment building in which defendant's wife and children resided. No one was home. A Nassau County assistant district attorney, who had been assigned to prosecute defendant on the endangering the welfare of a child charge, subsequently contacted the Floral Park Police Department and asked them to conduct another welfare check at the apartment during the next morning.
At approximately 7:30 a.m. on March 28, 2013, a lieutenant, two detectives, and three police officers, traveling in one unmarked and three marked police vehicles, with their lights and sirens off, approached the building in which the apartment was located. No representative of child protective services accompanied the police. The lieutenant and two detectives entered the building and banged on the apartment door for 15 to 20 minutes. An officer stood near the door of the apartment. The two other officers remained outside the building and set up a “perimeter” around the building.
Defendant's wife testified at the hearing that defendant was in the apartment, but that she opened the door and told the police that defendant was not home. The police claimed that defendant's wife permitted them to enter the apartment and search for defendant. The lieutenant, the detectives, and the officer who stood near the door entered the apartment. The officer stayed with defendant's wife in the kitchen. Defendant's wife claimed that she did not consent to the police entry into the apartment.
When the officer who was in the kitchen heard noises in the attic above the apartment, he asked defendant's wife if defendant was in the attic. The officer asserted that she nodded. Defendant's wife testified that she did not recall whether she nodded. The lieutenant contacted the Nassau County Police Emergency Service Unit (ESU) to gain access to the attic. After the ESU arrived, but before they could enter the attic, the police received a 911 call that a man had climbed onto the roof of that building. The officer who was in the kitchen exited the apartment and observed defendant on the roof. Shortly thereafter, defendant was arrested and charged with criminal contempt in the second degree (Penal Law § 215.503 ).
Following the Dunaway hearing, the District Court granted the motion to suppress, on the ground that defendant had been unlawfully arrested when six police officers had arrived at the building, two of whom set up a “perimeter” outside the building. The court also determined that, pursuant to the Aguilar–Spinelli test (Spinelli v. United States, 393 U.S. 410 1969; Aguilar v. Texas, 378 U.S. 108 1964; see People v. Ketcham, 93 N.Y.2d 416, 420 1999; People v. Parris, 83 N.Y.2d 342, 345–347 1994 ), the People had failed to establish the basis of the assistant district attorney's knowledge regarding defendant's alleged unlawful presence in the subject apartment. The District Court opined that the assistant district attorney's knowledge was based on an anonymous tip.
The District Court erred in granting defendant's motion, as defendant failed to establish standing to challenge the police conduct (see People v. Burton, 6 NY3d 584, 587 2006; People v. Wesley, 73 N.Y.2d 351, 358–359 1989; People v. Rodriguez, 69 N.Y.2d 159, 161 1987; People v. Colon, 19 Misc.3d 139[A], 2008 N.Y. Slip Op 50897[U] [App Term, 9th & 10th Jud Dists 2008]; cf. People v. Isaacs, 101 AD3d 1152 2012 ). “Standing exists where a defendant was aggrieved by a search of a place or object in which he or she had a legitimate expectation of privacy” (People v. Burton, 6 NY3d at 587; see People v. Ramirez–Portoreal, 88 N.Y.2d 99, 108 1996 ). A defendant who subjectively manifests “an expectation of privacy with respect to the location or item searched that society recognizes to be objectively reasonable under the circumstances” demonstrates that he or she has standing (People v.. Burton, 6 NY3d at 588; see People v. Ramirez–Portoreal, 88 N.Y.2d at 108; see also California v. Ciraolo, 476 U.S. 207, 211 1986; Rakas v. Illinois, 439 U.S. 128, 143–144 1978; Katz v. United States, 389 U.S. 347, 361 1967 [Harlan, J., concurring]; People v. Scott, 79 N.Y.2d 474, 482–491 1992; People v. Reynolds, 71 N.Y.2d 552, 557 1988 ). Here, however, we find that it is not objectively reasonable that defendant, who was violating a stay-away order of protection, should have had an expectation of privacy in the premises in which he was unlawfully present (see People v. Bradford, 118 AD3d 1254, 1255 2014; People v. Robinson, 205 A.D.2d 836, 837 1994 [the defendant, who “was barred from the premises by a court order ... had neither a legitimate expectation of privacy therein nor standing to challenge the police entry into” the home]; see also People v. Cajigas, 19 NY3d 697, 701 2012; People v. Aveni, 100 AD3d 228, 241 2013 [the entry into a protected home, even by invitation and permission, constitutes a violation of an order of protection] ).
In any event, we find that defendant's arrest was based on probable cause (see People v. Kozlowski, 69 N.Y.2d 761, 763 1987; People v. Bigelow, 66 N.Y.2d 417, 423 1985; People v. Martinez, 17 AD3d 606, 606 2005 ). We note that, contrary to the determination of the District Court, defendant was not seized or under arrest when the six officers had approached the subject building in four squad cars, one of which was unmarked, with their lights and sirens off, or when two officers had set up a “perimeter” on the public streets surrounding the subject building. Instead, defendant's wife permitted the police to enter the apartment. After she acknowledged that defendant was in the attic, and an officer observed defendant on the roof, the police had probable cause to arrest him.
Accordingly, the order is reversed and the motion to suppress is denied.
MARANO, P.J., IANNACCI and GARGUILO, JJ., concur.