People v. Carey

• Docket Number: Indictment No. 71057-22
• Decision Date: 11 December 2023
• Citation: 2023 NY Slip Op 51419 (U)
• Parties: The People of the State of New York v. Paul Carey, Defendant.
• Court: New York Supreme Court

2023 NY Slip Op 51419(U)

The People of the State of New York
v.
Paul Carey, Defendant.

Indictment No. 71057-22

Supreme Court, Nassau County

December 11, 2023

Unpublished Opinion

ADA Michael Greubel

Nassau County District Attorney's Office

John F. Carman, Esq.

Attorney for Defendant

Robert A. Schwartz, J.

Defendant is charged with one count of criminal possession of a weapon in the first degree, eighteen counts of criminal possession of a weapon in the second degree, thirty-six counts of criminal possession of a weapon in the third degree, eighteen counts of criminal possession of a firearm, and one count of menacing in the second degree. The People allege that on February 16, 2022, defendant possessed eighteen assault weapons, ammunition and various gun parts. The weapons were initially discovered during a warrantless search of defendant's house at 4 Riviera Drive East, Massapequa, New York. The People further allege that defendant intentionally placed or attempted to place another person in reasonable fear of physical injury, serious physical injury, or death, by displaying to another person what appeared to be a firearm.

Defendant filed an omnibus motion seeking suppression of the evidence obtained from his house and other relief. The court granted defendant's motion to the limited extent that it ordered a Mapp hearing to determine whether the police lawfully entered and searched defendant's house before obtaining a search warrant. The court conducted that hearing and received memoranda of law from the parties. For the reasons set forth below, defendant's motion to suppress physical evidence seized from his house is granted. In sum, this court finds that the People failed to establish that the initial warrantless entry into the house was justified by an emergency, that the police reasonably relied on the apparent authority of defendant's wife to consent to a search of the house, or that her consent was given voluntarily.

Procedural History

Defendant filed an omnibus motion seeking the suppression of evidence obtained from defendant's house, among other things. In his motion, defendant argued that all of the evidence recovered from his house should be suppressed because the police unlawfully entered and searched the house without a search warrant, valid consent, or any exigent need to conduct a warrantless search. Defendant also argued that even if the police did obtain valid consent from defendant's wife to search the house, it was not obtained until after they had already searched it unlawfully. Defendant further argued that any evidence obtained pursuant to the subsequent search warrants must be suppressed as the fruit of the poisonous tree. The People opposed the motion and argued, among other things, that defendant's wife gave the police her consent - verbally and in writing - to enter and search the house, and that the police reasonably relied on her apparent authority to consent, notwithstanding that she told the police that she and defendant were separated, she had moved out of the house, and defendant had removed at least some of her belongings from the house. In his reply, defendant contended that the police officers' initial entry into his house was not a lawful protective sweep and that any consent given by defendant's wife did not attenuate the taint of an initial unlawful entry.

A Mapp hearing was held on April 14, 2023, May 15, 2023, and June 12, 2023, to determine whether the police lawfully entered and searched defendant's home without a search warrant. The People called Police Officers Daniel Randazzo and Christopher Lamonica, Detective Matthew Sutch, and Lieutenant Daniel Delargy to testify. Defendant called Jason Zimmerman and Darlene Carey to testify. At the conclusion of the hearing, the parties submitted memoranda of law.

Findings of Fact

On February 16, 2022, at approximately 12:00 noon, Veronica Vasold arrived at work at 4 East Riviera Drive in Massapequa, where she worked as defendant's office manager. Defendant, a dentist, lived and worked out of his home at that address. When Vasold arrived, defendant was talking with an information technology technician. She spoke with defendant and noticed that he smelled of alcohol. Vasold knew that defendant had recently been suffering from health issues and that he and his wife were having marital troubles. She was also aware that defendant manufactured illegal firearms and kept them inside the house.

At approximately 1:00 p.m., while Vasold was talking to a patient on the phone, she heard defendant yell her name. After she finished her phone call, she yelled back to defendant but heard no answer. Shortly thereafter, she was speaking to another patient on the phone when she again heard defendant yell her name. Vasold placed the call on hold and walked out of the office to find defendant. She heard what she believed to be the sound of a firearm being cocked and saw defendant on a staircase holding what appeared to be a firearm. She asked defendant why he was holding a firearm and he responded "oh, I almost shot you," and laughed. Vasold left the house in fear for her safety. She called her father and defendant's wife, Darlene Carey, and told them what had happened.

At approximately 2:00 p.m., Officer Lamonica was assigned to investigate a report that a person had been menaced with a firearm at 4 Riviera Drive East. Lamonica was aware of a prior incident at that address involving a firearm. When Lamonica arrived he directed other officers to create a perimeter around the house for the safety of any other responding officers and established a staging area approximately one block away from the house. Darlene Carey drove up to the staging area and began speaking with Lamonica at approximately 2:12 p.m. She told the police that defendant had firearms inside the house. The police asked her to try to call defendant and ask him to come out of the house and she complied. Lamonica testified that a recording from his body-worn camera, which was entered into evidence at the hearing, accurately depicted what transpired at the staging area, including his interactions with Ms. Carey. That recording began at approximately 2:07 p.m. and ended at approximately 2:49 p.m.

Officer Randazzo spoke to Vasold at her father's house at approximately 2:13 p.m. Vasold told Randazzo that defendant did not discharge any firearms, did not point any firearms at her, and did not threaten her. She also told Randazzo that there was no one other than defendant inside the house when she left. Randazzo recorded his conversation with Vasold on his body-worn camera, which was entered into evidence at the hearing. At approximately 2:18 p.m., Randazzo called Lamonica and gave him the information he received from Vasold. Sergeant Gary Ruggerio was also present for that conversation. Lamonica told other officers at the staging area that defendant had a firearm and cocked it but did not point it at Vasold.

Lieutenant Delargy, of the Nassau County Police Department's Bureau of Special Operations ("BSO"), was also notified of the incident at 4 Riviera Drive East and that the suspect was still inside the house. Despite that Vasold told Randazzo that defendant had not threatened her or pointed a firearm at her, and Randazzo had relayed that information to Lamonica and Ruggerio, Delargy testified that he received information that a person at that address had been threatened with a firearm. Delargy also testified that he heard a transmission on his police radio that BSO officers had responded to that address on a prior date for an incident involving the defendant and a "barricade situation." Delargy joined BSO officers who were heading to 4 Riviera Drive East in the BearCat, an armored police truck. Inside the BearCat, Delargy and the other BSO officers proceeded to the staging area, and then parked in front of 4 Riviera Drive East. Delargy assumed responsibility as the entry team leader and oversaw the BSO officers who would later enter the house. Detective Sutch also responded to 4 Riviera Drive East. He spoke to Lamonica and learned that defendant was still inside the house and that the police and Darlene Carey were attempting to persuade defendant to come out. The police used a loudspeaker on the BearCat to ask defendant to exit the house. Sutch and Delargy both characterized this as a "barricade situation," meaning that the suspect was inside the house and not obeying commands to exit.

As borne out by Lamonica's body camera video, at approximately 2:22 p.m., Ms. Carey told Lamonica that defendant had been drinking, was an alcoholic, and had been regularly drinking as much as a liter of vodka every day. She had a phone conversation with a friend of hers, who was an attorney, and he told her to show to the police photographs of firearms defendant had built and kept in the house. She told Lamonica that her friend told her to leave the scene but Lamonica responded that she needed to stay until further notice. During a later phone conversation, while Ms. Carey was asking another person to call and ask defendant to surrender, she referred to that location as "home." During this period, Ms. Carey told Lamonica about the layout of the house and stated that she had keys to the house and could open the garage. She showed Lamonica and Ruggerio her key to the house and offered to use the garage door opener in her car to open the garage for the police. She also told them that a back door to the house might be open. She later stated, "I know it needs to be done."

Lamonica testified that he believed Ms. Carey was giving the police permission to enter the house but acknowledged that he never directly asked her for her consent and she did not explicitly give verbal consent. He testified on direct examination that his understanding of their conversation was that Ms. Carey was giving the police permission to enter the house and remove...