People v. Clark

• Decision Date: 19 May 2021
• Docket Number: Ind. No. 2159/12,2016–00770
• Citation: 194 A.D.3d 948,149 N.Y.S.3d 174
• Parties: The PEOPLE, etc., respondent, v. Hakeem CLARK, appellant.
• Court: New York Supreme Court — Appellate Division

194 A.D.3d 948

149 N.Y.S.3d 174

The PEOPLE, etc., respondent,

v.Hakeem CLARK, appellant.

2016–00770

Ind. No. 2159/12

Supreme Court, Appellate Division, Second Department, New York.

Argued—January 12, 2021

May 19, 2021

Paul Skip Laisure, New York, N.Y. (Sean H. Murray of counsel), for appellant, and appellant pro se.

Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Ellen C. Abbot, Brooke E. Barnes, and Katherine A. Triffon of counsel), for respondent.

LEONARD B. AUSTIN, J.P., ROBERT J. MILLER, HECTOR D. LASALLE, BETSY BARROS, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Joel L. Blumenfeld, J.), rendered November 23, 2015, convicting him of kidnapping in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Arthur J. Cooperman, J.H.O.; Steven W. Paynter, J.), of those branches of the defendant's omnibus motion which were to suppress physical evidence and his statement to law enforcement officials, and to controvert a search warrant and suppress physical evidence seized in the execution thereof.

ORDERED that the judgment is affirmed.

The defendant allegedly acted in concert with his codefendant to kidnap the complainant. Numerous ransom calls were made to the complainant's friends, one of whom informed the police that he recognized the voice of one of the callers as belonging to the defendant. The calls were traced to a two-family house owned by the defendant's cousin, a New York City Police Department (hereinafter NYPD) detective. The defendant resided with his cousin in the second floor apartment of the house, while tenants lived on the first floor, and the defendant's brother resided in the basement apartment.

Upon arriving at the subject house, the police found the complainant tied up inside the garage. When the complainant informed the police that the kidnappers were inside the house, the police knocked on the interior front doors. The interior door leading to the second floor apartment was opened by the defendant's cousin. After the defendant's cousin identified himself as a police officer and confirmed that there were others present inside, the police entered that part of the house where the defendant resided with his cousin. Upon entering, the police discovered and arrested the codefendant and another male.

They also seized two cell phones which had been used to make the ransom calls.

The defendant, who had been observed walking away from the subject house and matched the physical description provided, was approached by the police and, after identifying himself, was arrested and transported to the police station. Thereafter, the police obtained and executed a search warrant for the house, and recovered, inter alia, a credit card bearing the complainant's name and the defendant's benefits card from a second floor bedroom, and identity theft equipment from the basement. At the police station, the defendant waived his Miranda rights (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 ) and gave a statement, the substance of which was largely exculpatory.

The defendant moved, inter alia, to suppress physical evidence and his statement to law enforcement officials, and to controvert the search warrant and suppress physical evidence seized in the execution thereof, contending that the police entry into the house was unlawful and that his statement was involuntary. Following a hearing, the Supreme Court denied those branches of the defendant's omnibus motion. The defendant was ultimately convicted, after a jury trial, of kidnapping in the first degree.

"[T]he police may lawfully conduct a warrantless search when they have obtained the voluntary consent of a party who possesses the requisite degree of authority and control over the premises or personal property in question" ( People v. Cosme, 48 N.Y.2d 286, 290, 422 N.Y.S.2d 652, 397 N.E.2d 1319 ; see People v. Xochimitl, 147 A.D.3d 793, 794, 47 N.Y.S.3d 339, affd 32 N.Y.3d 1026, 87 N.Y.S.3d 132, 112 N.E.3d 309 ; People v. Watson, 101 A.D.3d 913, 914, 955 N.Y.S.2d 411 ). "Where a person with ostensible authority consents to police presence on the premises, either explicitly or tacitly, the right to be secure against warrantless arrests in private premises as expressed in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 is not violated" ( People v. Russo, 243 A.D.2d 658, 659, 663 N.Y.S.2d 623 ; see People v. Bunce, 141 A.D.3d 536, 537, 35 N.Y.S.3d 414 ; People v. Read, 74 A.D.3d 1245, 1246, 904 N.Y.S.2d 147 ). "[C]onsent can be established by conduct as well as words" (People v. Gonzalez, 222 A.D.2d 453, 453, 634 N.Y.S.2d 524, 538; see People v. Bunce, 141 A.D.3d at 537, 35 N.Y.S.3d 414 ).

Here, the People met their burden of establishing that consent to the warrantless search of the subject house was given by the defendant's cousin, a person who possessed the requisite degree of authority and control over the premises (see People v. Clark, 167 A.D.3d 1035, 1036, 88 N.Y.S.3d 894 ; People v. Xochimitl, 147 A.D.3d 793, 47 N.Y.S.3d 339 ; People v. Nelson, 292 A.D.2d 397, 738 N.Y.S.2d 603 ). The defendant's cousin, who immediately identified himself as a member of the NYPD upon answering the door leading to the area of the house where he and the defendant resided, effectively consented to the officers' entry and presence in the residence by failing to ask them to leave or otherwise indicating that they did not have his permission to remain (see People v. Bunce, 141 A.D.3d at 537, 35 N.Y.S.3d 414 ; People v. Gonzalez, 222 A.D.2d 453, 635 N.Y.S.2d 524, 538; People v. Schof, 136 A.D.2d 578, 579, 523 N.Y.S.2d 179 ). Moreover, the defendant's cousin testified during the hearing that he was cooperating with the police, that his intent was to help the police if he could, and that, upon being asked if there were others in the house, he told the police officers that there were.

The defendant failed to preserve for appellate review his specific contention that the police entry into the foyer of the subject house was unlawful (see CPL 470.05[2] ). In any event, this contention is without merit given the hearing testimony of the defendant's cousin (see Matter of Leroy M., 16 N.Y.3d 243, 246, 919 N.Y.S.2d 484, 944 N.E.2d 1123 ; People v. Priest, 227 A.D.2d 574, 574–575, 643 N.Y.S.2d 375 ).

Further, given the legal entry into the subject house, the seizure of the cell phones, which were in plain view, was lawful (see People v. Velasquez, 110 A.D.3d 835, 835–836, 972 N.Y.S.2d 678 ; see also 1 New York Search & Seizure § 4.03). Moreover, since the information provided in the application for the search warrant, which was obtained subsequent to the officers' initial entry into the house, justified the issuance of the warrant, the Supreme Court properly denied that branch of the defendant's omnibus motion which was to controvert the search warrant and suppress physical evidence seized in the execution thereof (see e.g. People v. Harris, 62 N.Y.2d 706, 707–708, 476 N.Y.S.2d 529, 465 N.E.2d 36 ).

The defendant's contention that his statement should...