Opinion
00268/2020
03-09-2021
The PEOPLE of the State of New York, Plaintiff, v. Dennis SMITH, Defendant.
Appearing on behalf of the People: Assistant District Attorney Lauren Fitton, Kings County District Attorney's Office, 350 Jay Street, Brooklyn, NY 11201 Appearing on behalf of the defendant: Lawrence Mottola, Esq., 44 Court Street, Suite 1217, Brooklyn, NY 11201
Appearing on behalf of the People: Assistant District Attorney Lauren Fitton, Kings County District Attorney's Office, 350 Jay Street, Brooklyn, NY 11201
Appearing on behalf of the defendant: Lawrence Mottola, Esq., 44 Court Street, Suite 1217, Brooklyn, NY 11201
Jill Konviser, J. On February 16, 2021, this Court conducted a combined Dunaway , Huntley and Mapp hearing. Police Officers Matthew Salzman, Joshua Navarro and Matthew McCurry testified for the People. The defendant did not present any evidence. The Court heard oral argument from the parties. The defendant's motion is granted in part and denied in part. The Court makes the following findings of fact and conclusions of law.
Findings of Fact
Police Officer Matthew McCurry testified that he has been employed by the New York Police Department ("NYPD") for 5½ years and is currently assigned to the 75th Precinct. On July 11, 2019, at approximately 8:00 p.m., McCurry and his partner responded to a radio run regarding a domestic dispute with a firearm at 252 Fountain Avenue, apartment 2L in Brooklyn. The 911 caller, the complaining witness's teenaged son, described the domestic dispute, and indicated that the assailant, the complaining witness's ex-boyfriend, kept a black briefcase containing guns inside the apartment.
McCurry arrived at the apartment where he spoke to the complaining witness, Mrs. Parris. She informed him that her boyfriend had choked her and "trashed" her apartment. Mrs. Parris's two sons—approximately fourteen and nine years old—were home at the time. McCurry observed that the apartment was in disarray as if a fight had taken place, with broken glass on the floor and clothing and other items strewn about. He asked Mrs. Parris if there were any guns in the apartment. Although she indicated she was unaware of that, her son showed McCurry the bedroom where he thought they might be found—they were not. McCurry did not search the apartment.
While the complaining witness's son identified the man as his mother's ex-boyfriend, Mrs. Parris identified him as her boyfriend.
Police Officer Matthew Salzman testified that he has been employed by the NYPD for 5½ years and is currently assigned to the 75th Precinct. On July 11, 2019 at approximately 8:00 p.m., Salzman was in an unmarked police car with his partner, Officer Mancilla, when they responded to a radio run regarding a domestic dispute with a firearm in the vicinity of 252 Fountain Avenue in Brooklyn. The man sought in connection with that dispute was reportedly fleeing northbound on Fountain Avenue and described as African American, approximately thirty years old, with no facial hair, wearing glasses, a white shirt, blue pants, and black Nike sneakers. Salzman and Mancilla arrived within two minutes to the intersection of Fountain and Pitkin Avenues, approximately one block from the incident address, where a man who matched the description, ran in front of their unmarked car. Mancilla got out of the police car, stopped the defendant, and placed him in handcuffs. Salzman and Mancilla then waited for fellow officers to arrive with the complaining witness for a show up identification.
At the hearing, Salzman identified the defendant as the man he observed run in front of his unmarked police car on July 11, 2019 at approximately 8:00 p.m.
Police Officer Joshua Navarro testified that he has been employed by the NYPD for 6 years, and in July of 2019 was assigned to the 75th Precinct. On July 11, 2019 at approximately 8:00 p.m., Navarro and his partner received a radio run regarding a domestic dispute at 252 Fountain Avenue. Shortly after the radio run, Navarro learned that Salzman and Mancilla had a man in custody in connection with that radio run. Navarro went to their location where he observed the man, matching the description provided in the radio run, in their custody. Navarro took custody of the defendant and drove to 252 Fountain Avenue for a show up identification. At approximately 8:20 p.m., Mrs. Parris identified the defendant as her boyfriend, the man who had assaulted her and "trashed" her apartment.
At the hearing, Navarro identified the defendant as the man he observed in the custody of Officers Salzman and Mancilla on July 11, 2019.
At the hearing, McCurry identified the defendant as the man arrested by fellow officers in connection with the assault of Mrs. Parris on July 11, 2019.
The defendant was transported to the 75th Precinct and at some point, McCurry and Officer Ardolinio questioned him. The officers asked the defendant if he possessed any guns. The defendant replied, in substance, that he had possessed guns in Pennsylvania, but then became nervous, defensive, aggressive, and agitated, and refused to answer additional questions. McCurry could not recall whether Miranda warnings were provided.
The officers, concerned that there still may have been guns at 252 Fountain Avenue arrived again at that location at approximately 12:45 a.m. Of the four officers, all but one—McCurry—were in plainclothes. One of the officers knocked on Mrs. Parris's door and when she answered, McCurry apologized for disturbing her. McCurry said the officers wanted to search for weapons that the defendant said might be in her apartment and asked if she would sign a consent form—he expressed concern for her children. Mrs. Parris, worried that a search would disturb her sleeping children, was assured by McCurry that they would not wake them. Mrs. Parris said ok and McCurry handed her a consent form which stated, inter alia , that she had been advised of her right to refuse to consent and could revoke her consent at any time. While she was reading the form, McCurry added, "none of this is going to be used against you." Mrs. Parris finished reading, opened the door, and said come in. McCurry thanked her, and the officers followed her inside. Mrs. Parris then re-read the consent form and signed it. As the apartment was still in some in disarray, the officers asked permission before moving aside items as they looked around. Moments later, McCurry's attention was drawn to a black briefcase next to the couch on top of two plastic storage containers. Inside the briefcase were two firearms, air pistols, and ammunition. One of the officers expressed relief, telling Mrs. Parris that the safety of the children was most important and reminded her that she had the officers’ phone numbers and should not hesitate to call if she needed anything. He reassured her that she was in no trouble.
The consent form was entered into evidence at the hearing as People's Exhibit # 2.
As the officers searched, they appeared to tidy some of the disarray.
The entirety of the above interaction was recorded by McCurry's body camera. That recording was entered into evidence at the hearing as People's Exhibit # 1.
The day after the defendant's arrest, July 12, 2019, at approximately 12:00 p.m., McCurry and Police Officer Conway interviewed him. Conway began by asking the defendant for pedigree information—his name, date of birth, and address. The defendant provided his address as 252 Fountain Avenue, apartment 2L, but indicated that he had only been staying there for two days as the complaining witness had an order of protection against him. Conway then read the defendant Miranda warnings from a card. The defendant said "yes," indicating that he understood each question. When Conway asked the ultimate question, whether the defendant wanted to answer his questions, the defendant responded, "some questions, yes." Conway informed the defendant that he had the right to choose which questions to answer and then asked the defendant to tell him what happened. The defendant immediately began to speak, describing in great detail a verbal altercation with the complaining witness. After several minutes, Conway asked the defendant about guns, to which the defendant replied, "no comment." When Conway asked if the defendant would consent to a DNA swab, the defendant responded, in substance, not until I speak to my lawyer. Conway ceased all questioning of the defendant.
That interview was recorded and a DVD of the interview was entered into evidence at the hearing as People's Exhibit # 3.
Conclusions of Law
The Court fully credits the testimony of Police Officers Matthew McCurry, Matthew Salzman, and Joshua Navarro.
Dunaway
The People have met their burden of demonstrating that the police had probable cause to arrest the defendant. Temporary Detention of the Defendant
Pursuant to Criminal Procedure Law Section 140.50, a police officer may stop an individual when the officer reasonably suspects that the individual has committed a crime. See Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ; People v. Cantor , 36 N.Y.2d 106, 365 N.Y.S.2d 509, 324 N.E.2d 872 (1975). A court, in determining whether a police officer has reasonable suspicion, must focus on a common-sense evaluation of the events leading to the individual's detention. See People v. Hicks , 68 N.Y.2d 234, 508 N.Y.S.2d 163, 500 N.E.2d 861 (1986).
In the instant matter, officers learned from the 911 caller identifying himself as the complaining witness's teenaged son, that the defendant—his mother's ex-boyfriend—had engaged in a domestic dispute with his mother and that a firearm had been involved in that dispute. The teenager provided a precise physical description of the defendant—an African American man, approximately thirty years old, with no facial hair, wearing glasses, a white shirt, blue pants, and black Nike sneakers. The teenager further provided the direction of the defendant's flight from his apartment—northbound on Fountain Avenue. Within two minutes of the 911 call and one block from the apartment, officers observed a man fitting that precise description running in front of their unmarked police car, headed in the direction the teenager had indicated. Under the totality of the circumstances, the officers had reasonable suspicion to detain the defendant pending a show up identification. See generally People v. Ramos , 74 A.D.3d 991, 904 N.Y.S.2d 81 (2d Dept. 2010) ; People v. Tatum , 39 A.D.3d 571, 835 N.Y.S.2d 217 (2d Dept. 2007) ; People v. Thomas , 294 A.D.2d 607, 743 N.Y.S.2d 280 (2d Dept. 2002) ; People v. Lynch , 285 A.D.2d 518, 728 N.Y.S.2d 489 (2d Dept. 2001). That the defendant was handcuffed and placed in a police car to be transported approximately one block to await the show up identification was not impermissible—the identified 911 caller made plain that the defendant had just been involved in a domestic dispute during which a firearm was displayed, provided significant and precise details regarding the defendant's possession of more than one such firearm, and the defendant was observed fleeing the scene within minutes of that domestic dispute. See generally People v. Allen , 73 N.Y.2d 378, 540 N.Y.S.2d 971, 538 N.E.2d 323 (1989) ; see also In re Jose T. , 127 A.D.3d 875, 8 N.Y.S.3d 334 (2d Dept. 2015) ; People v. Barnes , 4 A.D.3d 433, 771 N.Y.S.2d 359 (2d Dept. 2004). Probable Cause
As the parties are known to one another and identification is not at issue, a Wade hearing was not ordered in connection with the show up identification.
Once the defendant was lawfully detained, the civilian witness's show up identification of him as the perpetrator of the earlier assault gave rise to probable cause. Of course, "[p]robable cause does not require proof to a mathematical certainty, or proof beyond a reasonable doubt." People v. Mercado , 68 N.Y.2d 874, 877, 508 N.Y.S.2d 419, 501 N.E.2d 27 (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 N.Y.2d 248, 254, 445 N.Y.S.2d 97, 429 N.E.2d 775 (1981). It is well-settled that information provided by an identified citizen is sufficient in and of itself to provide a police officer with probable cause. See Petrychenko v. Solovey , 99 A.D.3d 777, 952 N.Y.S.2d 575 (2d Dept. 2012) (internal citations omitted); Norasteh v. State of New York , 44 A.D.3d 576, 845 N.Y.S.2d 234 (1st Dept. 2007) ; People v. Taylor , 61 A.D.3d 537, 877 N.Y.S.2d 70 (1st Dept. 2009). Thus, the People have met their burden of demonstrating that the police possessed probable cause to arrest the defendant.
Mapp
The defendant moves to suppress the briefcase containing several firearms and related items recovered from the living room of the complaining witness's home. As the People have demonstrated that the complaining witness gave both oral and written consent to search her apartment, the defendant's motion is denied.
The People do not contest the defendant's standing to challenge the warrantless search of the complaining witness's apartment.
A warrantless search of an individual's home is per se unreasonable and presumptively unconstitutional. See People v. Hodge , 44 N.Y.2d 553, 406 N.Y.S.2d 736, 378 N.E.2d 99 (1978). The need to obtain a search warrant is, however, vitiated when an individual with authority provides consent to search the home.
Here, Mrs. Parris unquestionably possessed authority to consent to the search of her home — an apartment that she shared with her two sons. The police, therefore, were not required first to obtain consent from the defendant, who may have stayed in the apartment for a few short days. See e.g. People v. Watson , 101 A.D.3d 913, 955 N.Y.S.2d 411 (2d Dept. 2012). Certainly, the voluntary consent of one authorized individual is sufficient. See generally People v. Sherman , 177 A.D.3d 777, 110 N.Y.S.3d 314 (2d Dept. 2019) ; People v. Obee , 299 A.D.2d 426, 749 N.Y.S.2d 559 (2d Dept. 2002). And, contrary to the defendant's contention, there was no reason to believe that he exercised exclusive control over the area in which the black briefcase was located—in plain view on top of two plastic storage containers next to the couch in the living room. See People v. Jackson , 105 A.D.3d 866, 962 N.Y.S.2d 679 (2d Dept. 2013). The officers, therefore, were entitled to rely on Mrs. Parris's consent to search her living room and the briefcase and its contents. See People v. Kelly , 58 A.D.3d 868, 872 N.Y.S.2d 499 (2d Dept. 2009).
Of course, the People bear a heavy burden in proving that consent to search is voluntarily given. See People v. Gonzalez , 39 N.Y.2d 122, 383 N.Y.S.2d 215, 347 N.E.2d 575 (1976). Whether consent is voluntary must be determined by a totality of the circumstances. Id. Courts may consider, inter alia , how many police officers were present when the consent was provided, whether the consenter was in police custody, if the consenter offered any resistance, and whether the police advised the consenter of the right to refuse to consent. Id. ; see also People v. Mercado , 120 A.D.3d 441, 992 N.Y.S.2d 12 (2d Dept. 2014).
Here, the People have met their burden of demonstrating that Mrs. Parris's consent was voluntarily given. Police Officer McCurry testified that he and three other officers returned to 252 Fountain Avenue to obtain consent to search for weapons. The officers engaged in a polite conversation with Mrs. Parris, during which they expressed concern for the safety of her children. None of the officers displayed a weapon, threatened Mrs. Parris, or so much as raised a voice, indeed they were respectful and kind. Mrs. Parris was not in police custody and offered no resistance, she merely expressed some hesitation that her sleeping children would be disturbed — a concern the officers allayed to her satisfaction. Mrs. Parris then readily agreed to allow the officers to search her apartment for the black briefcase of guns, invited the officers in, and signed the consent form after carefully reviewing it. That consent form advised Mrs. Parris that she had the right to refuse to consent and to revoke her consent at any time. Quite simply, the totality of the circumstances demonstrates that Mrs. Parris voluntarily consented both verbally and in writing to the search of her home. Accordingly, the defendant's motion to suppress the briefcase and its contents is denied.
Again, the entirety of the interaction was captured on video.
That the officers told Mrs. Parris she would not be prosecuted should the guns be located and that they had information from the defendant that the guns were still in the home, did not vitiate her voluntary consent. See generally People v. Robinson , 8 A.D.3d 131, 779 N.Y.S.2d 40 (1st Dept. 2004) ; People v. Watson , 259 A.D.2d 380, 687 N.Y.S.2d 119 (1st Dept. 1999) ; People v. Roberson , 249 A.D.2d 148, 672 N.Y.S.2d 36 (1st Dept. 1998). ; People v. Horn , 217 A.D.2d 406, 629 N.Y.S.2d 453 (2d Dept. 1995).
The People's alternative argument that exigent circumstances justified a warrantless search of Mrs. Parris's home is unavailing. Exigent circumstances exist when "urgent events make it impossible to obtain a warrant in sufficient time to preserve evidence or contraband threatened with removal or destruction." People v. Knapp , 52 N.Y.2d 689, 696, 439 N.Y.S.2d 871, 422 N.E.2d 531 (1981) (internal citations omitted). Here, the defendant, by all accounts the possessor of the firearms at issue, had been removed from the home — the danger dissipated.
Huntley
Pre- Miranda Interrogation
The defendant moves to suppress an un-Mirandized custodial statement made to Police Officers McCurry and Ardolinio at the 75th Precinct. McCurry testified that the officers questioned the defendant with respect to his possession of guns. There was no evidence, however, that the defendant was first provided with Miranda warnings. Accordingly, and as the People have failed to demonstrate that the defendant was provided with Miranda warnings prior to this custodial interrogation, the motion to suppress that statement is granted.
The People, recognizing the impropriety of this un-Mirandized custodial interrogation, indicated at the hearing that they do not intend to use the statement at trial. So, too, the People did not rely on, and likely would find no success in, arguing the public safety exception to the Miranda requirement under the particular facts and circumstances of this case. See e.g. People v. Waiters , 121 A.D.2d 414, 502 N.Y.S.2d 530 (2d Dept. 1986) ; People v. Chatman , 122 A.D.2d 148, 504 N.Y.S.2d 703 (2d Dept. 1986).
That the defendant was subject to an un-Mirandized custodial interrogation at the precinct had no bearing on Mrs. Parris's voluntary and wholly separate consent. Indeed, Mrs. Parris was entitled to grant or withhold consent to search her home as she saw fit, see discussion infra.
Post- Miranda Video Recorded Statement
The defendant also moves to suppress a post- Miranda video recorded statement that he made to Police Officers McCurry and Conway the day after his arrest. Although the uncontradicted hearing testimony and the video recording establish that the defendant was adequately advised of his Miranda rights, see Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ; People v. Anderson , 146 A.D.2d 638, 536 N.Y.S.2d 543 (2d Dept. 1989), the People failed to establish that the video recorded statement was sufficiently attenuated from the earlier unlawful interrogation.
A statement is attenuated when it follows a "definite, pronounced break" in interrogation, so that an individual is no longer under the influence of prior questioning. People v. Chapple , 38 N.Y.2d 112, 115, 378 N.Y.S.2d 682, 341 N.E.2d 243 (1975). Factors to consider in determining whether a statement is attenuated include: (1) the time elapsed between the statements; (2) whether there is a change in the location of the interrogation; (3) whether the same police personnel are present during each statement; and, (4) whether there is a change in the nature of the interrogation. See People v. Paulman , 5 N.Y.3d 122, 800 N.Y.S.2d 96, 833 N.E.2d 239 (2005).
Here, while a few hours elapsed between the first and second interrogations, both took place in the same location—the 75th Precinct—and involved at least one of the same police officers—Officer McCurry. Additionally, the topic remained the same throughout—the defendant's possession of firearms. Moreover, there was little if any evidence elicited with respect to the nature of the first interrogation and no way to conclude, therefore, whether the nature of the interrogation had changed.
So, too, there was no evidence regarding how the defendant was treated between interrogations. There was no testimony with respect to whether he was provided with food and/or drink, allowed to use the restroom, or given an opportunity to sleep. In short, there is a dearth of evidence for this Court to conclude that the defendant was no longer under the influence of the initial un-Mirandized custodial interrogation. While the People have made plain that they do not intend to use that initial interrogation, they must, nonetheless, provide sufficient information with respect to the surrounding facts and circumstances from which the Court can determine whether the second interrogation was sufficiently attenuated. They did not. Accordingly, the defendant's motion to suppress the post- Miranda video recorded statement must be granted.
Prior to that statement, Conway asked several questions — his name, date of birth, and address. The defendant, who conceded at the hearing that those questions were permissible pedigree questions, does not challenge the admissibility of his answers to those questions.
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Conclusion
The defendant's motion is granted in part and denied in part. This constitutes the Decision and Order of this Court.