People v. Glia

• Decision Date: 19 December 1996
• Citation: 226 A.D.2d 66,651 N.Y.S.2d 967
• Parties: The PEOPLE of the State of New York, Appellant, v. Ilan GLIA, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 967

651 N.Y.S.2d 967

226 A.D.2d 66

The PEOPLE of the State of New York, Appellant, v. Ilan GLIA, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

Dec. 19, 1996.

Diana Fabi Samson, of counsel (Norman Barclay, on the brief, Robert M. Morgenthau, District Attorney of New York County, attorney), for appellant.

Steven J. Miraglia, of counsel (Daniel L. Greenberg, attorney), for defendant-respondent.

Before ROSENBERGER, J.P., and ELLERIN, RUBIN and KUPFERMAN, JJ.

RUBIN, Justice.

The question framed by defendant on this appeal is whether exigent circumstances justified the warrantless entry by police into his home in order to effect his arrest. Defendant contends that the conduct of the police in this case, evaluated in light of the factors enumerated by this Court in People v. Cruz, 149 A.D.2d 151, 160, 545 N.Y.S.2d 561 [Sullivan, J.], contravened his right to be free from governmental intrusion into the privacy of his home (see, People v. Gonzalez, 39 N.Y.2d 122, 127, 383 N.Y.S.2d 215, 347 N.E.2d 575). However, because the arrest was initiated in a public place, the Fourth Amendment concerns expressed in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639, are not directly implicated, and the ensuing arrest of defendant in his home, without a warrant, does not contravene constitutional guarantees against unreasonable search and seizure (N.Y. Const., art. I, § 12; U.S. Const. 4th, 14th Amends.).

At the suppression hearing (Payton v. New York, supra ), it was adduced that, on September 7, 1993, Detective James Duggan of the Manhattan Robbery Squad was assigned to investigate the robbery of a toll booth operator at the Triborough Bridge that had been committed two days earlier. Detective Duggan was told by a detective with the Special Investigation Division of the Triborough Bridge and Tunnel Authority that similar robberies had been committed at the Whitestone and Throggs Neck Bridges by a person matching the description given by the victim of the Triborough Bridge robbery. The suspect was described as a white male in his 30's or 40, driving a silver or grey Monte Carlo and armed with a 9 millimeter semi-automatic pistol. Detective Duggan learned that detectives at the 49th Precinct's Robbery Identification Program had identified a suspect and had assembled a photographic array containing the suspect's picture. He borrowed the photo array and met with the victim of the Triborough Bridge robbery, who identified defendant as the man who robbed her.

Later that same day, Detective Duggan received permission from his superior officer to conduct surveillance of defendant's residence, located at 199-20 32nd Avenue in Bayside, Queens, for the purpose of making an arrest. Just before midnight, Detective Duggan, accompanied by Detectives Modica and Delany, arrived at the apartment building, a three-story structure with the entrance on 199th Street. There was "nothing going on" so they waited in their unmarked police car, parked across the street about a quarter of a block away.

At approximately 12:30 a.m., a white male, resembling defendant, parked a red Toyota in front of the building about 20 to 30 feet from the entrance. As the man exited the car, the detectives drove towards the Toyota, enabling Detective Duggan to confirm defendant's identity. When Detective Duggan got out of the car, defendant, who had been walking towards the building, ran for the entrance. The detective, who was not wearing a uniform and did not display a badge, yelled, "Police, Police, don't move." Defendant turned to look but continued running into the building, where he paused to unlock the vestibule door. The detectives followed him into the building, but defendant ran up the stairs and entered his second-floor apartment while they were still at the foot of the stairs.

Defendant did not respond to knocks on his apartment door. Detective Duggan went down to the street where he could observe defendant looking out of a window. The other detectives remained outside the apartment door while Detective Duggan flagged down a passing patrol car and requested assistance. The officers, assigned to the 111th Precinct, guarded the outside of the building and were later joined by other uniformed officers and Emergency Services personnel.

Detective Duggan returned to the apartment, where both he and defendant's wife, who had arrived on the scene, attempted to communicate with defendant through the door. Mrs. Glia did not have a key and there was no telephone in the apartment. Defendant was completely unresponsive and no sound could be heard coming from inside.

At approximately 1:30 a.m., Detective Duggan telephoned the District Attorney's office in Manhattan to attempt to obtain a warrant. He was told by Assistant District Attorney Roig that "there was no way to get a warrant that night, that there was no judge to sign a warrant, that we would have to wait until the earliest 9 o'clock, 9:00, 10 o'clock the next morning." At this point, "fearing that there was evidence that could be destroyed, things could happen, he could hurt himself, we decided to go in and take him out of the apartment." The detective added, "Because all the robberies that were committed, he was armed with a gun and I assumed that he still had a gun on him." He stated that Mrs. Glia again asked her husband to come out and, after receiving no response, "Emergency Service personnel set up and forced the door open, entered the apartment and subdued Mr. Glia." They used a hydraulic device to gain entry. "It will break the jam[b], force the lock, whatever is holding the door". In searching the apartment to ascertain if anyone else might be present, a large bag of money was discovered on top of a dresser in a bedroom. The bag, which was marked "$10,000", was later found to contain $9,405. Defendant was taken into custody at approximately 2:30 a.m.

After obtaining a search warrant, Detective Duggan returned to defendant's apartment about noon that same day. 26 rounds of .25 caliber ammunition and a holster for a .25 caliber gun were recovered from a closet. One .38 caliber or 9mm round was found on top of the dresser from which the bag of money was recovered. At 6:30 p.m. that evening, the toll booth clerk identified defendant from a lineup as the man who had robbed her at the Triborough Bridge.

The next day, after being read his Miranda rights, defendant gave a statement to an Assistant District Attorney in Detective Duggan's presence. As recounted by Supreme Court: "Defendant stated a man named Shavon, who had been his roommate, had given him the money found in his apartment to buy a car. He said that he himself used a blue Mercedes and that the car used in the robberies was a Monte Carlo. Defendant further stated that he drove his car ahead of Shavon to show him the way to the bridges in the robberies. He owned the Mercedes registered * * * to John Mercado, also the owner of the red Toyota, for insurance reasons."

Defendant presented no evidence at the suppression hearing.

Supreme Court found that the police had probable cause to arrest defendant. However, it held that, pursuant to Payton v. New York (supra ), once defendant reached and crossed the threshold of his home, he could not be arrested unless one of the exceptions to the warrant requirement applied. Citing this Court's decision in People v. Cruz, 149 A.D.2d 151, 545 N.Y.S.2d 561, supra, the court rejected the People's argument that exigent circumstances justified the warrantless entry into defendant's home and suppressed the evidence seized from the apartment. Finding no attenuation between the arrest and defendant's subsequent statements, the court also held them to be inadmissible (citing People v. Harris, 77 N.Y.2d 434, 436, 568 N.Y.S.2d 702, 570 N.E.2d 1051; People v. Johnson, 66 N.Y.2d 398, 407, 497 N.Y.S.2d 618, 488 N.E.2d 439). With respect to the lineup identification, the court found that while it was fairly conducted, it was not admissible since defendant would have been entitled to counsel if he had been arrested pursuant to a warrant (People v. Harris, supra, at 440-441, 568 N.Y.S.2d 702, 570 N.E.2d 1051).

On appeal, the People contend that the court erred in holding that, in the situation confronted by the police in this case, a warrant was required to arrest defendant in his home. They argue, as they did at the hearing before Supreme Court, that the exigent circumstances exception to the warrant requirement justifies defendant's arrest and, even if analyzed under the criteria set forth in People v. Cruz (supra ), his warrantless arrest was nevertheless proper.

It should be noted that People v. Cruz (supra ) involved an immediate, forcible entry into a suspect's home and not, as here, the culmination of an arrest initiated on a public street. Justice Sullivan succinctly stated the fundamental concern raised by the circumstances of the defendant's apprehension in Cruz (supra, at 160-161, 545 N.Y.S.2d 561): "Hearing no response to their knock after 'a minute or less', the officers knocked the door down and entered a darkened apartment. As the court recognized in United States v. Gomez, 633 F.2d 999, 1006, cert. denied 450 U.S. 994, 101 S.Ct. 1695, 68 L.Ed.2d 194, there can be 'no question' that kicking and banging on the door, 'typifies the very sort of forcible governmental intrusion against which the Fourth Amendment should shield' ". In the case at bar, by contrast, the detectives exercised great restraint in their pursuit of defendant and, as Supreme Court recognized, "chose to follow a routine procedure". They did not immediately progress to breaking down the door, but waited until other measures, including an attempt to obtain an arrest warrant, proved unavailing before instructing Emergency Services personnel to gain entry with a tool specifically designed for the task.

In holding defendant's arrest to be a Payton violation, Supreme Court seems to...