People v. Henry
| Decision Date | 02 June 2022 |
| Docket Number | Indictment No. 70277-21 |
| Citation | 2022 NY Slip Op 50483 (U) |
| Parties | The People of the State of New York, v. Andrew Henry. |
| Court | New York Supreme Court |
For the Defendant: Yan Katsnelson, Esq (18B Assigned)
For the People: Michael E. McMahon By: A.D.A. Travis Atkinson
The Court commenced a Dunaway/Mapp/Huntley hearing on February 24, 2022 and concluded the hearing on May 11, 2022. Police Officer Ismael Diaz and Sergeant Sean Tiernan of the New York City Police Department (NYPD) testified on behalf of the People. I find them to be credible witnesses.
Police Officer Ismael Diaz has been employed by the NYPD for four and a half years. He has been a patrol officer with the 121 Precinct for the last four years. On July 26, 2021, Officer Diaz was working with his partner, Officer Shawn Nola. Officer Diaz's tour began at 11:15 p.m. on July 25, 2021. He and Officer Nola were working routine patrol, which included responding to 911 calls.
At approximately 12:50 a.m. on the morning of July 26, Officer Diaz received a radio run for a robbery in progress at 52 Andrea Place, Staten Island. Upon arriving at that location Officer Diaz observed a group of other police officers already at the location, speaking with a female named Nephatiara Sease. Officer Diaz heard Ms. Sease repeatedly tell the officers that she was just shot at inside of 52 Andrea Place, 2nd floor apartment. Ms. Sease further told officers that the individual who shot at her was defendant Andrew Henry. Ms. Sease also told police that defendant stole her Air Pods.
Officer Diaz testified that after listening to Ms. Sease, he, Officer Nola, and Sgt. Tiernan began to walk in the direction of 52 Andrea Place. Approximately three houses down from the location, the officers encountered defendant. Officer Diaz asked defendant what was going on and conducted a brief frisk of defendant for his safety. Officer Diaz did not feel any weapons. Defendant calmly spoke with the officers and told them that he had Ms. Sease's Air Pods. Officer Diaz described defendant's demeanor as calm, respectful, and cooperative. Officer Diaz also noticed blood coming from defendant's shoe and offered him medical treatment, which he refused.
Defendant told the officers that he and Ms. Sease had been in an argument because she wanted to go to the ferry, and he said no. This argument turned into an altercation wherein a table was broken, and glass was shattered in defendant's apartment. Defendant further told police that Ms. Sease trashed his apartment and he wanted her out. After hearing this, Sgt. Tiernan went back to speak with Ms. Sease once again. When he returned, Sgt. Tiernan instructed Officer Diaz to place defendant under arrest.
Officer Diaz placed defendant under arrest without incident. Defendant did not resist, and the use of physical force was not necessary to place defendant in handcuffs. Once defendant was handcuffed, Officer Diaz frisked him more thoroughly. Officer Diaz recovered one 9mm bullet from defendant's pocket. When Officer Diaz asked defendant what it was defendant responded "it's hers." Officers Diaz and Nola transported defendant back to the 121 Precinct. Officer Diaz noticed during transport, and when back at the precinct, that defendant's demeanor had changed. Defendant, who once appeared very calm, now appeared nervous and was sweating profusely.
Once back at the 121 Precinct, Officer Diaz brought defendant before his desk sergeant, asked his pedigree information, and searched him again. An ambulance was called, and defendant was brought to Richmond University Medical Center due to the injuries to his foot. When defendant was brought back from the hospital, he was placed in the 121 holding cells. The People offered Officer Diaz's body worn camera footage into evidence as People's Exhibit 1 at the hearing. The footage corroborates the series of events as testified to by Officer Diaz.
After placing defendant under arrest, Officer Diaz applied for a search warrant for 52 Andrea Place, 2nd floor apartment. The People offered the search warrant and search warrant application into evidence at the hearing as People's Exhibit 3. The application in support of the warrant is based on conversations had with defendant, conversations had with Nephatiara Sease, the bullet found in defendant's pocket and a "wellness check" conducted by Sgt. Tiernan, which will be discussed more fully below. The warrant was issued by Hon. Rajeswari at 2:26 p.m. on July 26, 2021. Officer Diaz and his team executed the warrant around 5 p.m. that same day. Although not subject of the hearing, a firearm was recovered in the target location during the execution of the search warrant.
At approximately 12:30 a.m. on July 27, 2021, Officer Diaz spoke with Nephatiara Sease, who had also been placed under arrest. During this conversation, Ms. Sease recanted her earlier statements about defendant having fired a gun at her. At no point prior to the issuance and execution of the search warrant had Ms. Sease recanted.
After speaking to Ms. Sease, Officer Diaz spoke to defendant, in the company of Detective Colon, close to 1 a.m. on July 27, 2021. Officer Diaz explained that the approximate 23-hour delay in speaking with defendant was due to his doing paperwork and applying for the above-referenced search warrant. Officer Diaz brought defendant from the holding cells into the 121 detective squad interview room. Officer Diaz testified that he did not have to use any physical force to get defendant to the interview room, he did not promise him anything, nor did defendant ask for anything. Defendant's handcuffs were removed upon entering the room, and his demeanor appeared calm. Detective Colon advised defendant of his Miranda rights, having read them from a pre-printed card. Defendant answered that he understood his rights and was willing to speak to the police. The interview with defendant was recorded. The People entered the recording into evidence at the hearing as People's Exhibit 2.
Sgt. Tiernan has been employed by the NYPD for approximately ten years and has been assigned to the 121 Precinct for the last three years. Sgt. Tiernan is a squad sergeant whose duties include responding to radio runs, assigning radio runs, deploying personnel, supervising crime scenes, and verifying arrests. Sgt Tiernan was working the night of July 25, 2022, into July 26, 2021, as a patrol supervisor. At approximately 12:50 a.m. on July 26, 2022, Sgt. Tiernan responded to 52 Andrea Place after receiving a radio run. After arriving at the location, Sgt. Tiernan spoke to Nephatiara Sease, who was outside on the corner of Briarwood Road and Birch Road, which is a couple hundred feet away from 52 Andrea Place. Ms. Sease told Sgt. Tiernan that defendant shot at her feet inside of 52 Andrea Place, and she wanted her Air Pods back.
After speaking with Ms. Sease, Sgt. Tiernan walked over towards Andrea Place, and encountered defendant along the way. Sgt. Tiernan testified that they conducted a frisk for weapons, wherein he recovered defendant's wallet. Sgt. Tiernan was also present when Officer Diaz placed defendant under arrest and recovered a bullet from his pocket. Sgt. Tiernan testified that once defendant was placed under arrest, he turned his body worn camera off and contacted his supervisors. Sgt. Tiernan told his supervisors about defendant's arrest, Ms. Sease's arrest, and his desire to conduct a "welfare protective sweep" of 52 Andrea Place, based on the allegation that shots were fired inside the location, and they did not know if anyone else was hurt or injured inside the location. It should be noted that, according to the testimony of Sgt. Tiernan, both defendant and Ms. Sease told the police that there was no one else present inside the apartment.
Sgt. Tiernan and approximately six or seven other police officers conducted a welfare protective sweep at 52 Andrea Place. They entered the location using a key recovered from defendant's person. They announced their presence as police officers and walked through the entire apartment, looking anywhere a person could be hurt or injured. They also looked for any signs of ballistics or shots fired that could require a further wellness check. Sgt. Tiernan went on to explain that, for example, if there was a bullet hole through a wall, and a house immediately next to it, they would have to check on the neighbors to make sure no one was injured. Sgt. Tiernan testified that while performing this sweep they did not open any drawers or look anywhere that wasn't big enough for a human to fit. While conducting this sweep, Sgt. Tiernan's attention was drawn to a shell casing on the floor, and a bullet hole in the floor. No one had to move anything out of the way in order to see the shell casing and bullet hole.
At the hearing, the People entered photographs of the shell casing and bullet hole into evidence as People's Exhibits 4 and 5. The People also entered two videos from Sgt. Tiernan's body worn camera into evidence as People's Exhibit 6. The first portion of the video depicts Sgt. Tiernan's interactions with Nephatiara Sease and defendant on the street and is somewhat duplicative of Officer Diaz's body worn camera footage. Sgt. Tiernan shut his camera off after defendant was placed under arrest. He testified that he did so because there were no longer any police/citizen encounters, and he was going to call his supervisors and did not want his conversations recorded. Sgt. Tiernan turned his camera back on immediately prior to conducting the protective sweep, which is depicted on the second portion of video.
The second video contained on People's Exhibit 6 shows approximately six or seven officers conducting a ...
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