People v. Daye
| Decision Date | 20 June 2018 |
| Docket Number | 2016BX055283 |
| Citation | 60 Misc.3d 1205 (A),109 N.Y.S.3d 836 (Table) |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Kenrick DAYE, Defendant. |
| Court | New York Criminal Court |
For the Defendant: John Guarneri, Esq., 35 East Grassy Sprain Road, Suite 204, Yonkers, New York 10710
For the People: ADA Joshua Satter, Bronx District Attorney's Office, 215 East 161 St., Bronx, New York 10451
Defendant is charged in the accusatory instrument with Criminal Possession of a Weapon in the Fourth Degree [PL § 265.01(1) ] and Torturing and Injuring Animals (AML § 353).
On March 15, 2017 defendant moved for an order pursuant to CPL § 710.20(1) suppressing any tangible property seized by means of an illegal search and seizure or in the alternative, a Mapp/Dunaway hearing. Defendant further moved for an order suppressing statements made by defendant to law enforcement officials, or in the alternative, a Huntley/Dunaway hearing. On March 29, 2017 the People submitted their response in opposition to defendant's motion. On June 9, 2017 the court granted a Mapp/Huntley/Dunaway hearing.
On April 4, 2018 and April 20, 2018, this Court held a Mapp/Huntley/Dunaway hearing. The People called Police Officer Brad Scala as their only witness at the hearing. Defendant did not present any witnesses. The Court finds P.O. Scala's testimony to be candid and credible in all relevant and pertinent aspects.
On December 21, 2016 at approximately 9:48 A.M. P.O. Brad Scala was conducting patrol with his partner, P.O. Alloy, when they received a "1068" radio transmission for "assistance needed" at 765 East 232nd Street. P.O. Scala explained that "1068" is the code for "see complainant" and is used when a person requests NYPD assistance in a non-emergency situation. When P.O. Scala arrived at the location, a single family home, he testified that an ACS worker approached his vehicle and presented him with a family court order, admitted into evidence as People's Exhibit "1", which indicated:
P.O. Scala testified that although he spoke with the ACS worker about a prior incident at the location, he did not specify what specifically happened during that visit. P.O. Scala spent a total of approximately five (5) to seven (7) minutes reading the family court order and speaking to the ACS worker. During their entire conversation, P.O. Scala testified that the ACS worker never indicated there was any sort of emergency situation at the location or that she needed to gain immediate access to the home in order to prevent an emergency.
At some point during P.O. Scala's interaction with the ACS worker, Sergeant Hue and P.O. Tavares arrived on the scene. P.O. Scala testified that the ACS worker never asked him or any of the other officers present to do anything specific to gain access to the home. P.O. Scala asserted that he and his fellow officers "took over" the situation and proceeded to knock at the front door of the residence. P.O. Scala indicated that he knocked at the front door of the residence for approximately five (5) minutes while he called out "Police, is anyone home?." During this time, P.O. Scala stated that he did not hear any footsteps, screams, yelling or any noises of any kind emanating from the residence. Additionally, P.O. Scala stated that he did not hear a dog barking.
After approximately five (5) minutes at the front door, P.O. Scala testified that he "took it upon himself" to begin walk around defendant's home to attempt to find a back door entrance. On direct examination P.O. Scala testified that he took such action because he "felt" it was necessary to gain access to the home. On cross-examination P.O. Scala conceded that prior to entering the backyard he was not aware of any emergency situation. P.O. Scala further testified that the ACS worker did not ask him to go to the backyard of the house, there was no factual basis for him to believe that anyone was present in the residence and nothing further transpired that elevated the necessity of his involvement.
P.O. Scala stated that in order to gain access to defendant's backyard from the front door of the house he first walked down a flight of stairs; turned left to walk around a car that was parked on the driveway of the residence and made a left turn to walk down an alleyway which was approximately seventy (70) to one hundred (100) feet in length. P.O, Scala stated that the alleyway ran adjacent to the right side of defendant's house and led directly to defendant's backyard. Before P.O. Scala could enter defendant's backyard he testified that he approached a deteriorated fence which he described as "rolled up into a ball" at the side of the home. P.O. Scala specified that although he did not have to open a gate to access the backyard he did need to "blade his shoulder" and walk around the fence. P.O. Scala testified that Sergeant Hue, P.O. Tavares, P.O. Alloy and the ACS worker also entered the backyard with him at this time.
P.O. Scala described defendant's backyard as a small slab of concrete enclosed on all sides. Immediately to the left of the concrete was defendant's home and a back door. Before P.O. Scala could knock at the back door he testified that he observed a dog chained to a metal bar in the middle of the concrete. According to P.O. Scala, the dog was emaciated, its ribs and spine protruded, there were bowls without food or water and the dog was surrounded by its own feces. P.O. Scala knocked at defendant's back door and did not receive an answer. He testified that he then conferred with his fellow officers about the condition of the dog and, based on their observations of the dog, they decided to take the dog to the ASPCA for medical treatment. P.O. Alloy led the dog to the front of the residence and all of the officers and the ACS worker followed.
P.O. Scala testified that soon thereafter he alone returned from the front of the house to defendant's backyard to photograph the living conditions of the dog. He was in the backyard for approximately five (5) minutes when he heard a voice from the front of the house say "What are y'all doing with my dog," which prompted him to head back towards the front of the home. P.O. Scala testified that at the point he heard this statement he did not know who made it but he did hear Sergeant Hue speaking about the family court order. P.O. Scala approximated that it took him about one (1) minute to reach the front of the home and when he arrived he observed defendant in handcuffs and in the custody of the other police officers. P.O. Tavares informed P.O. Scala that he had asked defendant if he was in possession of any weapons and defendant stated that he had a knife. P.O. Tavares gave P.O. Scala a gravity knife and told him that he recovered it from defendant's "front right pocket." P.O. Scala testified that he was not present for defendant's arrest, the events leading up to it or the recovery of the knife. Further, P.O. Scala stated that he did not hear any officers at any time give defendant his Miranda warnings. P.O. Scala also testified that he did not ask Officer Tavares the reason why he placed defendant under arrest. P.O. Scala testified that while defendant was in handcuffs he repeatedly asked the officers "What are y'all doing with my dog" and inquired as to the reason for his arrest. P.O. Scala stated that he transported defendant back to the precinct and that Officer Alloy took the dog to the ASPCA.
Defendant claims that police officers entered his backyard, which is the curtilage of his home, without a search warrant or exigent circumstances in violation of his Fourth Amendment constitutional right to be free from illegal searches and seizures. Defendant further claims that the People failed to satisfy their initial burden in establishing that the police had probable cause to arrest him since P.O. Scala, the prosecution's sole witness at the hearing, was not present when defendant was placed into custody by P.O. Tavares. Additionally, defendant argues that his statements "What are y'all doing with my dog" and "I have a knife in my pocket" should be suppressed since the People did not meet their burden in proving beyond a reasonable doubt that defendant's statements were made voluntarily inasmuch as P.O. Scala was not the officer who was present when defendant made those statements. Defendant further contends that the statement "I have a knife in my pocket" was the product of custodial interrogation without Miranda warnings administered to him. Finally, defendant asserts that his statement "I have a knife in my pocket" should be precluded because the People's CPL § 710.30(1)(a) notice inaccurately indicated that it was made to P.O. Scala instead of P.O. Tavares.
The People, in opposition to defendant's motion, contend that the family court order was equivalent to a warrant which gave the police the authority to enter defendant's backyard. The People further claim that inasmuch as the dog was in "plain view" in defendant's backyard the officers had the authority...
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