People v. Costan

• Decision Date: 25 August 2021
• Docket Number: Ind. No. 10104/12,2014–03273
• Parties: The PEOPLE, etc., respondent, v. Robert COSTAN, appellant.
• Court: New York Supreme Court — Appellate Division

197 A.D.3d 716

152 N.Y.S.3d 162

The PEOPLE, etc., respondent,

v.Robert COSTAN, appellant.

2014–03273

Ind. No. 10104/12

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

Argued—October 22, 2018

August 25, 2021

Patricia Pazner, New York, N.Y. (Kathleen Whooley and Dina Zloczower of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky, and Sullivan & Cromwell LLP [Drew J. Beesley ], of counsel), for respondent.

REINALDO E. RIVERA, J.P., MARK C. DILLON, ROBERT J. MILLER, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dineen Riviezzo, J.), rendered March 25, 2014, convicting him of robbery in the first degree (nine counts), attempted robbery in the first degree, robbery in the third degree, attempted robbery in the third degree, and criminal possession of a forged instrument in the third degree (two counts), upon a jury verdict, and sentencing him to (1) concurrent determinate terms of imprisonment of 12 years under counts 1 and 5 (robbery in the first degree), to be followed by a period of postrelease supervision of 5 years, (2) an indeterminate term of imprisonment of 2 to 4 years under count 10 (robbery in the third degree), to run concurrently with the sentences imposed under counts 1 and 5 and consecutively with concurrent determinate terms of imprisonment of 12 years under counts 24, 28, and 32 (robbery in the first degree), to be followed by a period of postrelease supervision of 5 years, (3) an indeterminate term of imprisonment of 2 to 4 years under count 13 (attempted robbery in the first degree), to run concurrently with a determinate term of imprisonment of 12 years under count 15 (robbery in the first degree), with both sentences to run consecutively to a determinate term of imprisonment of 12 years under count 19 (robbery in the first degree), to be followed by a period of postrelease supervision of 5 years, and to an indeterminate term of imprisonment of 2 to 4 years under count 23 (attempted robbery in the third degree), to run concurrently with each other and consecutively to the determinate terms of imprisonment of 12 years imposed under counts 1, 5, 24, 28, 32 (robbery in the first degree), and 10 (robbery in the third degree), (4) determinate terms of imprisonment of 10 years under counts 36 and 40 (robbery in the first degree), to be followed by a period of postrelease supervision of 5 years, to run consecutively to each other and to all other counts, and (5) determinate terms of imprisonment of 1 year under counts 44 and 45 (criminal possession of a forged instrument in the third degree), to run concurrently with each other and to all other counts. The appeal brings up for review the denial, after a hearing (William Harrington, J.), of those branches of the defendant's omnibus motion which were to suppress certain statements he made to law enforcement officials, identification testimony, and physical evidence seized incident to his arrest. By decision and order dated February 13, 2019, this Court remitted the matter to the Supreme Court, Kings County, to hear and report on those branches of the defendant's omnibus motion which were to suppress certain statements he made to law enforcement officials, identification testimony, and physical evidence seized incident to his arrest allegedly in violation of ( Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 ), and held the appeal in abeyance in the interim ( People v. Costan, 169 A.D.3d 820, 94 N.Y.S.3d 131 ). The Supreme Court, Kings County (Miriam Cyrulnik, J.), has now filed its report. Justice Rivera has been substituted for former Justice Balkin (see 22 NYCRR 1250.1 [b]).

ORDERED that the judgment is modified, on the law and as a matter of discretion in the interest of justice, (1) by reducing the conviction of robbery in the first degree under count 28 of the indictment to robbery in the third degree and vacating the sentence imposed thereon, (2) by vacating the convictions of criminal possession of a forged instrument in the third degree under counts 44 and 45 of the indictment, vacating the sentences imposed thereon, and dismissing those counts of the indictment, and (3) by providing that the sentences imposed on the convictions of robbery in the first degree under counts 1 and 24 of the indictment shall run consecutively to each other, and that the sentences imposed on the convictions of robbery in the first degree under counts 5, 15, 19, 32, 36, and 40, robbery in the third degree under count 10, attempted robbery in the first degree under count 13, and attempted robbery in the third degree under count 23 shall run concurrently with each other and with the sentence imposed on the conviction of robbery in the first degree under count 1, for a total term of imprisonment of 24 years; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for sentencing on the conviction of robbery in the third degree under count 28 of the indictment.

During a two-month period in the fall of 2012, the defendant allegedly committed a series of more than one dozen gunpoint robberies at commercial establishments in Brooklyn ranging from dry cleaning stores to delicatessens. On November 21, 2012, an anonymous tip was made to Crime Stoppers naming the defendant as the perpetrator of the robberies. On November 22, 2012, a complaining witness, who worked at an establishment that had been robbed three times, identified the defendant from a photo array as the perpetrator. The police, with the help of the defendant's former girlfriend, obtained the defendant's cell phone number and, by a November 23, 2012 order, received court authorization to track the location of the phone. On the same day, the police pinpointed the defendant's location at the Linden Motor Inn in Brooklyn. Upon confirming with a motel attendant that the defendant was a guest at the Linden Motor Inn and reviewing video surveillance provided by the attendant, the police identified the room in which they believed they could locate the defendant. When a team of police officers arrived at the room and identified themselves as police, one officer knocked on the door and a male voice from inside the room stated that he would open the door and that he did not have a gun. The defendant then opened the door and was handcuffed and placed under arrest. He denied having any weapons and stated that he had thrown his gun in a sewer. A pat down of the defendant resulted in the recovery of the cell phone and a wallet containing several forms of identification from different states, debit cards, and bank checks. Thereafter, the defendant was transported to the Brooklyn Robbery Squad at the 77th Precinct station house. He was initially placed in a holding cell and then moved to an interview room, where Miranda warnings were read to him ( Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 ). After signing the Miranda form and confirming his understanding, the defendant waived his Miranda rights and agreed to answer questions without legal representation. The defendant made an oral statement in which he denied involvement in the robberies. After being shown still photographs of video surveillance footage from some of the robbery locations, the defendant admitted to committing several of the robberies. He then agreed to write a statement in the presence of a detective, which he completed before being returned to a holding cell. Thereafter, the defendant was identified from a lineup by four complainants as the person who committed robberies at their commercial establishments.

The defendant moved, inter alia, to suppress physical and identification evidence and his statements made to law enforcement officials and argued that his arrest inside the motel room without a warrant supported by probable cause deprived him of his Fourth Amendment rights. On the scheduled date of the suppression hearing, the Supreme Court denied the defendant's request for an adjournment of the hearing to give his attorney more time to prepare. At the court's urging, counsel agreed to represent the defendant at the suppression hearing, but expressed his concern that he had not had an adequate opportunity to review the discovery materials. While the court suppressed the defendant's pre- Miranda statement in the motel room that he had thrown his gun into a sewer, it denied the rest of the defendant's suppression motion. The defendant was ultimately convicted, after a jury trial, inter alia, of robbery in the first degree (nine counts). On appeal, the defendant, among other things, argued that he was deprived of the effective assistance of counsel at the suppression hearing. This Court remitted the matter to the Supreme Court, Kings County, for a new suppression hearing and to file its report with this Court thereafter ( People v. Costan, 169 A.D.3d 820, 94 N.Y.S.3d 131 ). The appeal was held in abeyance in the interim (see id. ). After a new hearing, the Supreme Court issued a report which included findings of fact and conclusions of law in support of its determination denying suppression except as to the defendant's pre- Miranda statement in the motel room that he had disposed of his gun in a sewer. After the Supreme Court's report was filed, both parties provided supplemental briefing to this Court.

" ‘[O]n a motion to suppress inculpatory statements, the defendant bears the burden of persuasion, but the People must first establish the legality of the police conduct and the defendant's waiver’ of his or her Miranda rights" ( People v. Fuentes, 185 A.D.3d 960, 961, 128 N.Y.S.3d 221, quoting People v. Kemp, 131 A.D.2d 265, 267, 521 N.Y.S.2d 546 ).

"On a motion by a defendant to suppress physical evidence, ‘the People have the burden of going forward to show the legality of the police conduct in the first instance’ " ( People v. Benbow, 193...