Opinion
4016/2009.
April 11, 2011.
The People were represented by Bronx County Assistant District Attorneys Randy Craig Sinkler and Omer Wiczyk.
The defendant was represented by Lawrence Dubin, Esq.
Via a felony complaint dated September 21, 2009, the defendant Bill Williams was charged with attempted murder in the second degree (3 counts), criminal possession of a weapon in the second and fourth degrees, reckless endangerment in the first degree, and menacing in the second and third degrees. Via an indictment filed on October 21, 2009, the defendant was charged with attempted murder in the second degree (3 counts), attempted assault in the first degree (3 counts), criminal possession of a weapon in the second degree (2 counts), criminal use of a firearm in the first and second degrees, and reckless endangerment in the first degree.
On November 23, 2009, defense counsel filed an omnibus motion, to which the People responded on December 15, 2009. In a decision filed on March 16, 2010, Justice Barrett ordered a Huntley/Wade/Crews/Dunaway hearing. In papers dated January 12, 2010, defense counsel moved to suppress the ammunition found in defendant's apartment, to which the People responded on January 29, 2010. In a decision dated April 12, 2010, Justice Barrett ordered a Mapp hearing. On March 18, 2011, before the commencement of the hearing, defense counsel orally moved for a Payton hearing and the People orally moved for a Sirois hearing, applications which were granted.
A separate decision addressing the Sirois issue will be rendered.
The Huntley/Mapp/Payton/Wade/Crews/Dunaway hearing was conducted over six days: March 18, 21, 22, 24, and 28 and April 5, 2011. Four witnesses testified for the People: Police Officer Felix Arana of the 42nd Precinct of the New York City Police Department ("NYPD"), Police Officer Michael Flower of Police Service Area 7 of the Housing Bureau of the NYPD, Detective Franklyn Polanco of the 41st Precinct Detective Squad, and Assistant District Attorney Jonathan Ortiz. Lisa Hewlett, defendant's mother, testified on behalf of defendant, as did Officer Flower. On April 5, 2011, oral argument was heard (on March 28, 2011, the People submitted a preliminary post-hearing memorandum of law). As set forth herein, this Court finds all of the witness' testimony credible, except Hewlett's testimony, which is almost entirely incredible.
The defense subsequently withdrew the Wade application with respect to Aaron Alleyne and Deveron Pressley (H. 422).
Findings of Fact
The People's Case
At approximately 1:15 a.m. on September 20, 2009, Officer Flower, a 16 ½ year veteran of the NYPD, and his partner, Police Officer Mariana Diaz, were driving a marked police car and responding to a radio call at 171st Street and Prospect Avenue in The Bronx. As they were driving northbound on Prospect Avenue and 163rd Street, Officer Flower observed a tan car with Pennsylvania license plates pull over abruptly to the curb by a hydrant. Officer Flower observed a male, whom he later learned was Deveron Pressley (also known as Jay), get out of the rear left passenger side and run toward 958 Prospect Avenue. The driver and front passenger, who were later identified as Aaron Alleyne (also known as AJ) and Amirou Sow (also known as Ace) remained in the car. Officer Flower drove to 165th Street and made a U-turn to return to where the tan car was parked.
As he approached 164th Street and Prospect Avenue, Officer Flower heard three gunshots. Thereafter, Officer Flower, who was approximately 10-15 feet away, observed a male, whom he later learned was defendant, running and taking off his green sweatshirt. At that point, Officer Flower observed a semi-automatic pistol in defendant's hand. As Officer Flower pointed his gun at defendant, defendant ran into 958 Prospect Avenue.
Thereafter, Officer Flower observed Pressley jump back into the rear passenger seat of the tan car. As the car sped away, Officer Flower gave chase. Officer Diaz transmitted over the radio that shots were fired at 163rd Street and Prospect Avenue. Within 30-40 seconds of pursuing the tan car, Officer Flower pulled it over at 165th Street and Prospect Avenue. Pressley "popped" out and said, "They are shooting at me, Bill Williams, 958 Prospect. 2B" (H. 36, 78).
Numerals preceded by "H." refer to the suppression hearing minutes.
Officer Flower also testified that Pressley referred to defendant as "Smiles" (H. 36).
At approximately 1:16 a.m., Officer Arana, a two-year veteran of the NYPD, and his partner Police Officer Robert Castillo, who were driving a marked police van and assigned to summons enforcement, received a radio call that an officer needed assistance at 165th Street and Prospect Avenue. Once they arrived, Officer Arana observed that Officer Flower and another officer had stopped the tan car on the corner of that location. Officer Arana observed Alleyne, Sow, and Pressley being taken out of the car. As they were frisked for weapons, they kept screaming, "we were just shot at" (H. 14). No weapons were recovered from them, nor from the car. They provided Officer Arana with a description of defendant — black male with braids, wearing a green and gray "hoody" (H. 14, 26). Since the police were unsure whether Alleyne, Sow, and Pressley were victims or perpetrators, they were handcuffed and transported to the 41st Precinct.
Officer Castillo drove the tan car to the precinct while Officer Arana drove Sow and Alleyne. Officer Arana drove slowly through Prospect Avenue because there were a lot of officers and police cars. As he drove by 958 Prospect Avenue, Officer Arana observed a black male, who was wearing a white t-shirt with braids, in handcuffs and being escorted out of that building. During that time, Sow and Alleyne, who were seated in the third row of the police van, stated "that's the guy right there" (H. 17). Thereafter, Officer Arana asked, "What guy? Where [do] you recognize him from?" to which they replied, "that was the guy that was shooting at us" (H. 17). After Officer Arana informed Sergeant Chang about the identification made by the two males, he drove them to the precinct. Subsequently, Officer Arana learned that the individual who was being escorted from 958 Prospect Avenue was defendant.
As the investigation continued, Officer Flower returned to 958 Prospect Avenue and observed a male, who he later learned was Kelvin Hilton, whose right thigh was bleeding, sitting on the steps. Hilton informed Officer Flower that he was coming from the "kitchen spot" and that somebody shot him, but he did not know by whom (H. 79). As Officer Flower entered the building, he observed two garbage cans in the vestibule area. Defendant's green sweatshirt was ultimately recovered from one of the cans.
Officer Flower observed a blood trail that led to the stairs. The blood trail ended on the second floor and was followed by a wet mop trail that ended in front of apartment 2B. Officer Flower knocked on the door and said, "Police" (H. 43). When defendant answered the door, Officer Flower recognized him as the person who was running from the street into 958 Prospect Avenue. After defendant answered the door and said, "What's going on?" Officer Flower noticed blood on the wall and the floor next to the door, and a mop trail that continued to the back of the apartment (H. 43). After defendant was removed from the apartment, Officer Flower entered and conducted a protective sweep, including looking for victims and someone with a gun. Officer Flower observed seven individuals in defendant's bedroom, which was opened. The officer recovered a bong and a bag of "weed" (H. 45). The seven individuals were subsequently transported to the 41st Precinct. Thereafter, the apartment was "frozen," which meant that no one could enter or leave (H. 46).
On cross-examination, Officer Flower admitted that when defendant opened the door, he did not say anything (H. 85).
These items are not the subject of the Mapp hearing (H. 3-4).
At the precinct, Alleyne, Sow, and Pressley were shown individually in a different room a photographic array in the presence of Officer Flower. The photograph in each array depicted defendant, who was in position number six, from a prior arrest. After identifying defendant as the perpetrator, Alleyne and Pressley signed their names below defendant's photograph, while Sow initialed his name (People's Exhibits 2A-C). Pressley informed Officer Flower that he knew defendant for quite some time.
As Officer Flower was fingerprinting defendant at the precinct, he told defendant, "I almost killed you" (H. 62). Officer Flower testified that he made that statement because he "was as scared as [defendant] was, just to get a point across" (H. 64). After he made the statement, it appeared that defendant "became very humble. He got scared. It kind of sank in" (H. 62). Thereafter, when defendant began talking about the shooting, Officer Flower immediately put up his hand and told him to stop and that, "I don't want to hear this. I want you to tell the detectives what you were going to tell me" (H. 63). At approximately 12:15 p.m., Officer Flower brought defendant upstairs to the Detective Squad to speak with Detective Polanco, a 16 ½ year veteran of the NYPD.
Prior to speaking with defendant, at approximately 8:00 a.m., Detective Polanco was assigned to investigate this shooting and another shooting unrelated to this case. He spoke to Officer Flower and patrol supervisors concerning the case. At approximately 12:55 p.m., defendant was placed in the interrogation room. Detective Polanco asked defendant if he wanted to speak to him about what transpired earlier that day and defendant stated yes. Prior to speaking with defendant, Detective Polanco read the Miranda warnings from a NYPD form to defendant. Defendant was advised the following:
(1) You have the right to remain silent and refuse to answer any questions. Do you understand?; (2) Anything you do or say may be used against you in a court of law. Do you understand?; (3) You have the right to consult an attorney before speaking to the police and to have an attorney present during any questioning now or in the future. Do you understand?; (4) If you cannot afford an attorney, one will be provided for you without cost. Do you understand?; (5) If you do have an attorney available, you have the right to remain silent until you have had an opportunity to consult with one. Do you understand?; and (6) Now that I have advised you of your rights, are you willing to answer questions?
(People's Exhibit 9). After agreeing to answer questions, defendant placed his initials after each question and signed the bottom of the form. The police did not threaten defendant, make any promises to him in return for his statements or draw their weapons during the questioning.
Defendant provided an oral and written statement. Orally, defendant told the detective that on the night of the incident, he went to the "chicken spot" on Prospect Avenue with his "girl" and another friend (H. 134). Defendant stated that, on his way back to his apartment, he saw a gold Nissan Maxima and became suspicious of it. Defendant said that he recognized someone in that car as the person with whom he had problems in the past. That person, who had a gun, ended up waiting for defendant in front of his building. Defendant stated that he was going to shoot that person before that person shoots him. At approximately 1:05 p.m., defendant, in a written statement, which was similar to his oral statement, stated that a "guy" from his block passed a gun to him and he shot twice at Jay. After firing the gun, defendant passed it back to the "guy" who gave it to him (People's Exhibit 10). During the questioning, defendant never requested for an attorney.
According to Officer Flower, at some point during the investigation, defendant's mother, Lisa Hewlett, who was accompanied by two females, went to the precinct because she wanted to get into her apartment. Officer Flower informed her that the apartment had been frozen and that he had contacted the Bronx District Attorney's Office ("D.A.'s Office") to obtain a search warrant. Officer Flower testified that, after Hewlett inquired if there was a way to get into her apartment, he told her, "You can sign a consent to search. If the D.A.'s Office okays it, we can take your consent to search, go to the apartment, and search the apartment" (H. 65). Officer Flower stated that he informed Hewlett that she did not have to sign the police department consent form. Subsequently, she signed the form. Officer Flower informed her that she could be present during the search of her apartment. Hewlett was not in custody nor was she under any suspicion. When Officer Flower searched the apartment, he recovered a plastic bag containing 61 22-caliber and 168 45-caliber live rounds from the hallway closet outside of Hewlett's bedroom. Officer Flower stated that Hewlett informed him that the closet, which contained her clothing, was her bedroom closet.
The following day, at approximately 12:50 p.m., a lineup, consisting of defendant and five other males, was conducted in the presence of Officer Flower at the Bronx Homicide Task Force. Pressley, who was present for the lineup, was instructed to look through the window to see if he recognized anyone. Thereafter, Pressley stated, "That's Williams," who was in the third position (H. 56). Pressley indicated in the lineup report that he recognized defendant from the shooting on Prospect Avenue (People's Exhibit 5). All 6 males in the lineup were seated and wore a black hat (People's Exhibit 6A-C).
A.D.A. Ortiz, who presented this case to the Grand Jury, met with the complainants in this case. During the course of their meetings, Pressley stated that he had been living on Prospect Avenue for some time prior to the shooting and that he knew defendant very well because they were in the same gang. Pressley told A.D.A. Ortiz that he and defendant were friends and that there were times when he would stay over at defendant's apartment. As for Alleyne, he told A.D.A. Ortiz that he had lived on Prospect Avenue — across the street from defendant's apartment — and that he knew defendant from the neighborhood. Alleyne stated that when he passed defendant on the street, he would say hello. Alleyne knew who defendant's friends were. Alleyne considered defendant to be an acquaintance from the neighborhood.
The Defense Case
According to Officer Flower, he signed the accusatory instrument first for defendant and, 1 minute later, for Dashawn Williams. Officer Flower acknowledged that the accusatory instrument for Dashawn Williams states that he opened the door of defendant's apartment. Officer Flower explained that it was a mistake and that it was defendant who opened the door. Officer Flower had been working 36-38 hours and dealt with 12 individuals that day, including defendant, the people who were in defendant's apartment, the victims, Hewlett, and the two women who accompanied her to the precinct.
Hewlett provided a different version concerning the circumstances that led to the signing of the consent form. On direct-examination, Hewlett testified that, at approximately 1:30 a.m., when she returned to her apartment (the lease was under her name) from the club, she was informed by the police that she could not get in because the apartment was a crime scene. After providing the police with a form of identification, Hewlett told them that the apartment was hers. Hewlett got in a cab and followed the police car, in which defendant was in, to the 41st Precinct. According to Hewlett, sometime after 2:00 a.m., she informed the police at the front desk that she was not going anywhere until she could get back into her apartment. Hewlett slept on the bench that was directly across from the front desk. Hewlett stated that, at approximately 10:00 a.m., when she asked Officer Flower if she could get into her apartment, he told her he would speak to the detectives upstairs.
According to Hewlett, two detectives told her that, since they could not get a search warrant until Monday morning, she would not be able to return to her apartment until then. Thereafter, she was given a consent form to sign. The detectives instructed her to read the form carefully and to sign the form which would allow the police to search her entire apartment. Thereafter, Hewlett signed the form because she wanted to change her clothes and eat. Hewlett felt like she had no choice but to sign the form since the police made it clear that, unless she signed the form, she would not be able to return to her apartment before they obtained the search warrant. According to Hewlett, she returned to her apartment with Officer Flower and a police captain. On cross-examination, Hewlett denied that the detectives instructed her to read the consent form carefully. She insisted that the detectives placed the consent form in front of her and told her to sign it.
Conclusions of Law
Defendant's motion to suppress the ammunition, oral and written statements, and identification evidence is denied.
Mapp/Payton/Dunaway
Defendant moves to suppress the ammunition on the ground that the police had no probable cause to arrest him and that he was illegally arrested in his home. Additionally, defendant asserts that no exigent circumstances existed to justify the warrantless entry into his apartment. Defendant claims that defendant's mother signed the consent to search form because "she had no choice in the matter" and that she "succumbed to the will of the police" (defendant's motion, dated January 12, 2010).
There is no question that the police had probable cause to arrest defendant. The evidence demonstrates that Officer Flower observed Pressley get out of a tan car and run toward 958 Prospect Avenue. Thereafter, Officer Flower heard three gunshots fired and observed defendant, who held a gun and took off his green sweatshirt, run into 958 Prospect Avenue. At the same time, he observed Pressley jump into the tan car. When Officer Flower stopped the car, Pressley told him that Bill Williams or Smiley shot at him. Pressley also provided the officer with defendant's address and apartment number. When Officer Flower went to defendant's building, he observed Hilton sitting on the steps. Hilton told Officer Flower that he had just been shot, but did not know by whom. Thereafter, Officer Flower found a green sweatshirt in the garbage can in the vestibule area. He noticed a blood trail that ended on the second floor and was followed by a wet mop trail that ended in front of apartment 2B. When Officer Flower knocked on the door, defendant opened it. Thereafter, Officer Flower noticed blood on the wall and the floor next to the door, and a mop trail that continued to the back of the apartment.
In order to sustain a finding that the police had probable cause to arrest, the evidence must show that they were possessed of information which would lead a reasonable person to conclude that it is "more probable than not" that a crime has been committed and that the person being arrested is the person who committed it. People v. Radoncic, 239 AD2d 176, 179 (1st Dept.), lv. denied, 90 NY2d 897 (1997) (citation omitted). Here, probable cause for defendant's arrest was established based upon Officer Flower's observations and information provided by Pressley. See People v. Hicks, 38 NY2d 90, 94 (1975) (police have a right to rely upon information furnished by private citizens who report crimes that they have witnessed or which were perpetrated against them); People v. Mack, 2011 WL 1161167 (First Department, March 31, 2011) (officer, who saw defendant picking up pistol and placing it in jacket pocket, had probable cause to pursue and arrest defendant); People v. Flow , 37 AD3d 303 , 304 (1st Dept.), lv. denied, 9 NY3d 843 (2007) (police had probable cause to arrest defendant based upon information supplied by a citizen witness).
While the police did not have an arrest warrant for defendant, the removal of defendant from the entryway of his apartment did not violate his Fourth Amendment rights under Payton v. New York, 445 U.S. 573 (1980). Once defendant opened the door and presented himself for public view after Officer Flower knocked and identified himself as a police officer, the police had the right to reach in and pull defendant out as he stood in close proximity to his doorway. See People v. Kozlowski, 69 NY2d 761, 762-63 (1987); People v. Ashcroft , 33 AD3d 429 (1st Dept. 2006), lv. denied, 8 NY3d 843 (2007); People v. Burke , 24 AD3d 129 , 130 (1st Dept. 2005), lv. denied, 6 NY3d 846 (2006); People v. Andino, 256 AD2d 153, 154 (1st Dept. 1998), lv. denied, 93 NY2d 922 (1999).
It should be noted that, when defense counsel called Officer Flower as a defense witness on direct examination, the officer acknowledged that he signed the accusatory instrument for Dashawn Williams, the individual who allegedly mopped the trail of blood, that stated that Dashawn Williams, and not defendant, opened the door. This Court credits Officer Flower's explanation that it was a mistake to state in Dashawn Williams' accusatory instrument that he opened the door. The officer, who signed the accusatory instrument for Dashawn Williams 1 minute after defendant's, stated that he had already worked 36 to 38 hours prior to signing the accusatory instrument. Prior to going to the complaint room to have the accusatory instrument drafted, he was assigned to deal with 12 individuals, including the victims, all the suspects who were found inside defendant's apartment, Hilton, Hewlett and two other individuals who were with Hewlett. Officer Flower testified that it was a chaotic, long day, there was some confusion, and noted that defendant and Deshawn Williams shared the same last name.
In any event, the emergency doctrine exception justified the police's warrantless entry. In People v. Dallas , 8 NY3d 890 , 891 (2007), the Court of Appeals held that there are three basic requirements for the application of the emergency doctrine: (1) the police must have reasonable grounds to believe that there is an emergency at hand and that there is an immediate need for their assistance for the protection of life or property; (2) the search must not primarily be motivated by an intent to arrest and seize evidence; and (3) there must be some reasonable basis, approximating probable cause, to associate the emergency with the area or property to be searched (citing People v. Mitchell, 39 NY2d 173).
Here, the police were presented with an emergency under the Mitchell test. Under the circumstances as described above and the fact that Officer Flower entered the apartment to conduct a protective sweep to ascertain whether there were any injured or armed persons, it is clear that the entry into defendant's apartment was proper pursuant to the emergency doctrine. See People v. Garcia , 27 AD3d 307 , 308 (1st Dept.), lv. denied, 6 NY3d 894 (2006) (police entitled to conduct protective sweep of apartment to look for defendant or other potentially armed and dangerous persons where law enforcement responded to a violent dispute among a group of men at the open door of apartment and where police observed a man inside with a gun); People v. Martinez, 267 AD2d 101, 102 (1st Dept. 1999), lv. denied, 95 NY2d 836 (2000) (police properly entered apartment, where door had been pried open and left ajar, to look for possible perpetrators or victims after responding to report of burglary); People v. Robinson, 225 AD2d 399 (1st Dept.), lv. denied, 88 NY2d 884 (1996) (police justified in entering premises to investigate an emergency situation and to conduct a sweep to ascertain whether there were any injured or armed persons where they reasonably relied on a radio report of a fight or dispute therein possibly involving guns and drugs).
The record further establishes that the warrantless in-home arrest of defendant and warrantless search of his apartment for victims and armed persons were, in any event, justified by hot pursuit and exigent circumstances. See United States v. Santana, 427 U.S. 38, 42-43 (1976) (warrantless entry justified by hot pursuit and there was a need to act quickly to prevent destruction of evidence); Warden v. Hayden, 387 U.S. 294, 298 (1967) (search of defendant's house upheld on the ground that is was conducted while the police were in hot pursuit; police were informed that an armed robbery had just occurred and that the suspect had entered a certain house); People v. Etcheverry, 39 NY2d 252, 256 (1976) (where police were informed that defendant was armed and in the house, they were justified in searching for defendant and for weapons which could endanger life or thwart the accomplishment of their mission); People v. Pollard, 304 AD2d 476 (1st Dept.), lv. denied, 100 NY2d 585 (2003) (defendant's warrantless arrest at his apartment was justified by exigent circumstances since police had reason to believe the possibly armed and dangerous defendant was inside the apartment with his sister and any delay for the purpose of securing a warrant would have created an unreasonable risk); People v. Chatman, 268 AD2d 299 (1st Dept.), lv. denied, 95 NY2d 794 (2000) (record established that the entry into defendant's apartment was justified by hot pursuit and exigent circumstances); People v. Herring, 179 AD2d 549 (1st Dept.), lv. denied, 79 NY2d 948 (1992) (exigent circumstances existed to justify warrantless entry into apartment where the police followed a trail of blood leading from the lobby, where victim was bleeding profusely, to defendant's second floor apartment).
In determining whether exigent circumstances exist, courts look at the six factors enunciated in People v. Cruz, 149 AD2d 151, 159 (1st Dept. 1989) (see pages 5 and 6 of the People's post-hearing memorandum of law for the discussion of these factors).
The Fourth Amendment does not require the police to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others. Speed here was essential, and only a search of the apartment for victims and weapons could have insured the safety of any individuals inside and to secure any weapons which could be used against them or to effect an escape. See Hayden, 387 U.S. at 298-99.
The next issue is whether the subsequent warrantless search of defendant's apartment that occurred approximately 12 hours after defendant's arrest, which led to the discovery of the ammunition in the hallway closet, was lawful based on consent. The People have a heavy burden of proving that the police entered defendant's apartment only after obtaining voluntary consent from Hewlett. See People v. Gonzalez, 39 NY2d 122, 128 (1976); People v. Gonzalez, 115 AD2d 73, 79 (1st Dept.), aff'd, 68 NY2d 950 (1986). In addition, the People have the burden of establishing by a preponderance of the evidence that the person giving consent had the actual or apparent authority to do so. People v. Gonzalez, 88 NY2d 289, 295 (1996). Consent to search is voluntary when it is a true act of the will, an unequivocal product of an essentially free and unconstrained choice. Voluntariness is incompatible with official coercion, actual or implicit, overt or subtle. Gonzalez, 39 NY2d at 128. No one circumstance is determinative of the voluntariness of consent. Whether consent has been voluntarily given must be determined from the totality of the circumstances. Id.; People v. Entzminger, 163 AD2d 138, 141 (1st Dept.), lv. denied, 76 NY2d 939 (1990).
The ammunition was not recovered from defendant's apartment at the time of his arrest. Additionally, there is no evidence that Officer Flower observed the ammunition during the protective sweep.
Various factors to be considered in deciding whether the consent to a search was freely and voluntarily given are: (1) whether, at the time of the search, the individual was in custody or under arrest; (2) the personal background of the individual, including her age and prior experience with law enforcement officers; (3) whether there was overbearing police pressure and coercion; (4) whether the individual was evasive or uncooperative with law enforcement officers; and (5) whether the individual was advised by the police of her right to refuse to consent. See Gonzalez, 39 NY2d at 128-30; Entzminger, 163 AD2d at 141.
At the outset, based on the totality of the circumstances, the People have established that Hewlett was not coerced in any way into giving consent to search the closet. Hewlett, who was not in custody, went to the precinct because she wanted to get into her apartment. When Officer Flower stated that the apartment had been frozen and that the police had contacted the D.A.'s Office to get a search warrant, she asked if there was any way she could get into her apartment. Officer Flower told Hewlett that she could sign the consent to search form, but that the D.A.'s Office would have to authorize it first. After the D.A.'s Office authorized the police to allow Hewlett to sign the consent form, Hewlett, a social worker, signed it. Prior to signing the form, Officer Flower had informed Hewlett that she did not have to sign it. Additionally, Officer Flower told Hewlett that she could be present during the search.
On direct examination, Hewlett testified that, when she got home, she was informed by the police that she could not get in because it was a crime scene. After providing the police with her identification, she told them that it was her apartment and that she lived there. Thereafter, Hewlett went to the precinct at approximately 2:00 a.m. and stayed there until 10 a.m. since she had no place to stay. At approximately 10:00 a.m., when she asked the detectives if she could return to her apartment, they told her no because it was still a crime scene. They informed her that she could re-enter her apartment if she signed the consent to search form. After they asked her to read it carefully, they told her to sign it. According to Hewlett, she signed the consent form because she felt that she had no choice. The consent form states, in pertinent part, "This written permission is given by me to the Officers VOLUNTARILY and without threats or promises of any kind" (People's Exhibit 7, emphasis in original).
On cross examination, however, Hewlett denied that she was told to read the form carefully. When the prosecutor asked Hewlett if the police told her to read the form carefully, she responded, "they told me to sign it" (H. 384). When the prosecutor asked if she remembered stating on direct examination that the police told her to read the form carefully, Hewlett stated, "They told me to sign it" (H. 384). Hewlett continued to be non-responsive after being asked more than three times whether she testified earlier that the police had told her to read the form carefully. Finally, Hewlett stated, "They might have said it. No, they didn't say it. No" (H. 386). When the prosecutor asked, "Do you remember a few minutes ago saying that they did?," Hewlett responded, "I probably got confused, but no, they didn't" (H. 386). Hewlett also stated on cross examination that she signed the consent form because there was nothing for the police to find in her house (H. 386). During the direct and cross examinations, Hewlett testified that Officer Flower and a captain drove her back to her apartment and they conducted the search in her presence.
During cross examination, Hewlett was non-responsive when asked about the circumstances that led to her signing of the consent form. On direct and cross examinations, Hewlett invoked her 5th Amendment right numerous times and refused to answer questions concerning the circumstances that led to the recovery of the ammunition and matters related to the Department of Corrections' recorded phone calls. Accordingly, based on her demeanor and responses, this Court finds Hewlett's testimony to be almost entirely incredible. The only portions of Hewlett's testimony that this Court finds credible are that she lived in apartment 2B with defendant, that the police asked her to read the consent form before signing it, and that the police drove her back to the apartment and conducted the search in her presence.
The hearing evidence demonstrates that the signing of the consent form was based on Hewlett's desire to go back into her apartment. Her background includes being a social worker with arrests in New York, New Jersey, and Florida and she had been convicted of numerous crimes, including possession of stolen property and possession of marijuana. Officer Flower specifically told Hewlett that she did not have to sign the consent form. The form that Hewlett signed states that she was voluntarily giving the police consent to search and that the police did not threaten or make any promises to her. The evidence further shows that Hewlett was cooperative during the signing of the consent form. The police did not force their way into the apartment and the search was conducted in Hewlett's presence. Under these circumstances, the People have established that Hewlett's consent was freely and voluntarily made. See Gonzalez, 39 NY2d at 128-30; People v. McClain , 61 AD3d 416 (1st Dept.), lv. denied, 13 NY3d 747 (2009); People v. Hill, 260 AD2d 216 (1st Dept.), lv. denied, 93 NY2d 972 (1999).
The next question is whether the People established that Hewlett had the authority, actual or apparent, to give consent to search the hallway closet. It is well-settled that a warrantless search of a premise or a portion thereof to be valid where "permission to search was obtained from a third-party who possessed common authority over or other sufficient relationship to the premises or effects sough to be inspected." United States v. Matlock, 415 U.S. 164, 171 (1973). In determining whether a third-party has such "common authority," courts should look to whether the evidence shows:
mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of [such persons] has the right to permit the inspection in his own right and that other have assumed the risk that one of their number might permit the common area to be searched.
Gonzalez, 88 NY2d at 293 (emphasis in original) (citation omitted).
Additionally, if the police rely in good faith on the apparent capability of an individual to consent to a search and the belief by the police is reasonable, the evidence will not be suppressed, even though the person does not have such authority. People v. Adams, 53 NY2d 1, 9, cert. denied, 454 U.S. 854 (1981). In determining that the police reasonably relied in good faith on such apparent authority, a court must find that: (1) the police's belief was reasonable based on an objective view of the circumstances; and (2) the police made some inquiry into the consenting party's control over the premises or property to be inspected. Adams, 53 NY2d at 9.
There is no question that Hewlett was in fact a co-tenant with defendant, her adult son, at the apartment. The hearing evidence shows that the police requested identification from Hewlett and she told them that the apartment was hers and that she lived there. Hewlett accompanied the police to her apartment to allow them to search her apartment. The ammunition was recovered in the hallway closet of the apartment and there was no evidence that defendant had exclusive access to the closet. Accordingly, Hewlett had actual and apparent authority to allow the police to enter and search the apartment. See Id. at 9-11; People v. Pacheco, 292 AD2d 242 (1st Dept.), lv. denied, 98 NY2d 679 (2002); People v. Williams, 278 AD2d 150 (1st Dept. 2000), lv. denied, 96 NY2d 764 (2001).
In sum, the police had probable cause to arrest defendant and no Payton violation occurred. Additionally, defendant's mother, who had authority to consent, voluntarily consented to the search of the apartment. Accordingly, defendant's motion to suppress the ammunition is denied in all respects.
Huntley
Defendant moves to suppress the oral and written statements that he made at the police precinct on the ground that they were the fruits of an unlawful arrest and obtained without the prior reading of the Miranda warnings. Further, defendant contends that he was induced into making an involuntary statement (defendant's motion dated November 13, 2009, pp. 10-11).
As stated previously, the police had probable cause to arrest defendant. This Court must determine whether the People have met their burden of establishing that defendant's oral and written statements were voluntarily made. The evidence shows that defendant knowingly, intelligently, and voluntarily made the oral and written statements after he had properly received the Miranda warnings and waived his rights under Miranda.
Initially, before defendant was advised of the Miranda warnings, Officer Flower, while processing defendant's arrest and fingerprinting him, stated, "I almost killed you" (H. 62). Officer Flower testified that he made that statement because he was just as scared as defendant was and to get a point across. After he made that statement, defendant appeared to become "very humble. He got scared. It kind of sank in" (H. 62). As soon as defendant began talking about the incident, Officer Flower put up his hand and told him that he did not want to hear what he had to say. Officer Flower told defendant that he could tell the detectives what he wanted to tell him. Officer Flower then went upstairs and told Detective Polanco that defendant wanted to talk about the shooting.
Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term "interrogation" under Miranda refers not only express questioning, but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect. Rhode Island v. Innis, 446 U.S. 292, 300-01 (1980). The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. Id. at 301. There is no question that defendant was in custody at the time Officer Flower made his statement. The issue is whether Officer Flower's statement constitutes interrogation.
Officer Flower's statement was not the functional equivalent of interrogation. Rather, it was declarative in nature. No response was called for under the circumstances. There is no evidence that the officer should have known that his statement was reasonably likely to evoke an incriminating response from defendant. See People v. Huffman, 61 NY2d 795, 797 (1984) (the officer's statement, "You're a liar," did not constitute express questioning, but was declarative in nature); People v. Clark, 198 AD2d 46 (1st Dept. 1993), lv. denied, 83 NY2d 870 (1994) (the officer's question to defendant, "Do you know how close you came to getting shot?," was not reasonably likely to elicit an incriminating response from the suspect); People v. Harrison, 188 AD2d 374, 374-75 (1st Dept. 1992), aff'd, 82 NY2d 693 (1993) (not the functional equivalent of interrogation where defendant committed homicide in front of police and asked the whereabouts of his gold chain and the police responded, "You're worried about your gold chain?," which precipitated an incriminating statement after defendant became agitated). Accordingly, even if defendant had made statements to Officer Flower as a result of hearing the statement (Officer Flower testified that as soon as defendant started talking about the incident, he told defendant to stop talking), they would be admissible at trial as defendant was never interrogated.
As to defendant's oral and written statements, the evidence shows that defendant made the statements approximately 11 hours after his arrest. Given the totality of the circumstances, this Court does not find it unusual that the police did not administer the Miranda warnings or question defendant shortly after his arrest. Officer Flower testified that there was some confusion at the precinct since there were 12 individuals with whom he had to deal. Additionally, when Detective Polanco began his tour of duty at 8:00 a.m., he was assigned to investigate this shooting and another shooting that arose from a different incident.
Defendant knowingly, intelligently, and voluntarily made the statements after he had properly received the Miranda warnings and waived his rights under Miranda. Detective Polanco credibly testified that defendant was given the Miranda warnings verbally and in writing. That defendant's initials were next to each warning is also evidence that he knowingly waived his rights before giving his statements. Accordingly, defendant's motion to suppress the oral and written statements is denied. See Huffman, 61 NY2d at 797.
Wade/ Crews
During oral argument on April 5, 2011, defense counsel conceded that defendant, Pressley, and Alleyne are known to each other. Accordingly, defense counsel withdrew his Wade motion as to Pressley and Alleyne. The only remaining issue is whether the identification procedures involving Sow was proper.
While the People have the initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in a pretrial identification procedure, it is the defendant who bears the ultimate burden of proving that the procedure was unduly suggestive. See People v. Chipp, 75 NY2d 327, 335, cert. denied, 498 U.S. 833 (1990); People v. Gonzalez, 173 AD2d 48, 56 (1st Dept. 1991), lv. denied, 79 NY2d 1001 (1992). The standard of determining whether an identification procedure was improperly suggestive is whether it was conducted in such a way that there is a substantial risk of irreparable misidentification, which is determined by considering the totality of the circumstances surrounding the procedure. See Neil v. Biggers, 409 U.S. 188, 198-99 (1972); Gonzalez, 173 AD2d at 56.
At the hearing, defense counsel asserted that the identification made by Sow was a show-up and that it was unduly suggestive since he was driven to the crime scene where, after seeing defendant in handcuffs, he identified defendant. In his omnibus motion, defense counsel contended that the pretrial identification of defendant was unnecessarily suggestive and conducive to a substantial likelihood of irreparable misidentification. Additionally, defense counsel claims that since the identification was a direct result of defendant's illegal arrest, the evidence of the procedure should be suppressed as the fruit of the poisonous tree (defendant's motion dated November 13, 2009, pp. 11, 12)
Initially, as stated previously, the police had probable cause to arrest defendant. Therefore, this Court need not address whether the identification evidence was obtained subsequent to an illegal arrest pursuant to United States v. Crews, 445 U.S. 463 (1980). The hearing evidence shows that Officer Arana, who was unaware that defendant had been arrested in front of his building, was transporting Sow and Alleyne to the precinct. Officer Arana testified that he drove slowly through Prospect Avenue because there were a lot of officers and police cars. As he drove by 958 Prospect Avenue, Officer Arana observed a black male, who was wearing a white t-shirt with braids, in handcuffs and being escorted out of that building. During that time, Sow and Alleyne, who were seated in the third row of the police van, stated "that's the guy right there" (H. 17). Thereafter, Officer Arana asked, "What guy? Where [do] you recognize him from?" to which they replied, "that was the guy that was shooting at us" (H. 17).
Clearly, there is no evidence that the police prompted Sow to make this identification. Since Sow's identification of defendant was not made under police auspices, defendant's motion to suppress identification evidence is denied. See People v. Clark, 85 NY2d 886, 888 (1995) (denial of motion to suppress identification upheld since it was not the product of police suggestion but rather was spontaneous); People v. Mendoza, 293 AD2d 326 (1st Dept.), lv. denied, 98 NY2d 678 (2002) (motion to suppress identification testimony properly denied since complainant's spontaneous identification of defendant was not police-arranged identification procedure); People v. Scantlebury, 188 AD2d 327 (1st Dept. 1992) (motion to suppress identification evidence properly denied after hearing where evidence showed that complainant's identification of defendant was not made under police auspices).
Even if this Court were to view the encounter as a showup, given the circumstances of the identification (and, where defendant was identified despite the fact that he was no longer wearing the green sweatshirt when Sow initially observed defendant fire the shots), there is no basis for suppression since it was prompt, on-the-scene and not unduly suggestive. See Mendoza, 293 AD2d at 326; Scantlebury, 188 AD2d at 327.
It is well-established that there is no requirement that a defendant in a photo array be surrounded by people nearly identical in appearance. See People v. Lee, 96 NY2d 157, 163 (2001). This Court has reviewed the photo array and finds that defendant has not met his burden to prove that the identification procedure was unduly suggestive. The photo array indicates many similarities between defendant and the other 5 individuals, in that every person had light skin, corn rows, had similar facial hair, and all appeared to be of similar weight and age. There is no requirement that the participants in the photo array be identical in appearance and age, and all that is required is that they resemble each other sufficiently so that defendant is not "singled out for identification." People v. Prado, 276 AD2d 383 (1st Dept.), lv. denied, 95 NY2d 967 (2000) ( quoting Chipp, 75 NY2d at 336). Additionally, when Sow viewed the photo array, he was in a different room in the absence of Pressley and Alleyne. In sum, given the totality of the circumstances, the photo array identification of defendant bears no evidence of suggestiveness in the array or in how it was performed. See Lee, 96 NY2d at 163; People v. Drayton , 70 AD3d 595, 596 (1st Dept.), lv. denied, 15 NY3d 749 (2010).
Conclusion
Defendant's motion to suppress the ammunition, oral and written statements, and identification evidence is denied in all respects.
This constitutes the Decision and Order of this Court.