People v. Hill

• Decision Date: 01 August 2017
• Docket Number: 3833. 4399/10.
• Citation: 153 A.D.3d 413,60 N.Y.S.3d 23
• Parties: The PEOPLE of the State of New York, Respondent, v. Rayheame HILL, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

153 A.D.3d 413

60 N.Y.S.3d 23

The PEOPLE of the State of New York, Respondent,

v.Rayheame HILL, Defendant–Appellant.

3833. 4399/10.

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

Aug. 1, 2017.

Seymour W. James, Jr., The Legal Aid Society, New York (David Crow of counsel), and Dechert LLP, New York (Amanda Tuminelli of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Shera Knight of counsel), for respondent.

TOM, J.P., MANZANET–DANIELS, MAZZARELLI, ANDRIAS, WEBBER, JJ.

Judgment, Supreme Court, Bronx County (Albert Lorenzo, J.), rendered March 13, 2014, convicting defendant, after a jury trial, of criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to a term of 10 years, affirmed.

According to the investigating detective at a suppression hearing, the complainant reported that, while he was in an elevator, he was robbed by a man brandishing a revolver. The complainant described his assailant as a black man in his twenties, just over six feet tall and wearing a mask. The robber forced the complainant to hand over two rings, a necklace, his driver's license, and $60 in cash. After he handed over the property, the complainant heard a gunshot in the elevator fired in a downward direction. The robber told the complainant to face the wall, and then fled. Officers responding to the scene found no evidence that a bullet had been fired. This led the detective to believe that the assailant had possibly shot himself in the foot.

Later that day, the detective heard over his police radio that a man complaining of a bullet wound to his leg had arrived at a local hospital. The detective went to the hospital with the complainant and found defendant, the person the radio transmission had been referring to, in the emergency room. Defendant told the detective that he was shot while walking in the street. Without first obtaining defendant's permission, the detective took possession of two paper bags located under defendant's hospital bed, and opened them. The bags contained defendant's clothing. While the clothes were being removed, a ring fell out of the pocket in a pair of pants. The complainant identified the ring as one of the pieces of jewelry that had been taken from him during the robbery. The detective also removed a driver's license from the same pocket; it too was the complainant's.

The detective then interviewed defendant's girlfriend, who told him that she had gone with defendant to the hospital in a car. Defendant's girlfriend gave the detective the keys to the car, which he later discovered belonged to defendant's aunt. After leaving the hospital, the detective secured the vehicle at the precinct, where it was inventoried.

The detective proceeded to defendant's residence, a basement apartment. He arrived at around 1:30 a.m. with three other officers. The officers wore suits and ties and displayed their badges; though they were armed, no guns were drawn. Two sets of locked gates separated the apartment from street level. The detective banged on the gates until he was allowed inside. At the apartment, the police were met by defendant's uncle, who let the police inside. The uncle told the police that he, his wife, and their children lived in the apartment, and that defendant also stayed with them. He told the police that defendant had been at the apartment earlier that evening suffering from a bullet wound.

The detective asked the uncle for consent to search the apartment, which the uncle gave by signing a consent form that had been read to him and which gave the police permission to search "[t]he premises, [and] access ... the apartment and accessible areas." The police recovered a Taser and a BB gun from a pile of defendant's clothes in defendant's living space, which was in the living room. After those items were recovered, in the area between the second locked gate leading to the apartment and the apartment itself, the police recovered a revolver from inside an unsecured pipe. While in the apartment, the detective also received written consent from defendant's aunt to search the vehicle in which defendant had arrived with his girlfriend at the hospital. Thereafter, back at the precinct, the detective searched the vehicle. Inside its center console, he recovered another ring that the complainant identified as belonging to him.

Defendant's uncle also testified at the suppression hearing. Although his testimony was consistent with the detective's in broad terms, he stated that he consented to the police entering the apartment only after they forced their way in, and did not know what he was signing when he signed the consent form, but just wanted to get the police out of the apartment as quickly as possible because he was afraid. Further, he stated that the police had already begun to search inside the apartment at the time he signed the consent. The uncle also testified that he never consented to the police search of the area where the revolver was recovered.

The court granted defendant's motion to suppress only to the extent of suppressing the evidence found in the clothing bags seized at the hospital. This was on the basis that the police did not have probable cause at that time to arrest defendant, who had a privacy interest in the bags. The court denied, however, suppression of the ring recovered from the vehicle, finding that defendant did not have standing to challenge the search, because he did not own, drive or borrow the vehicle, and because possession of the keys, alone, did not establish standing. In any event, the court observed, the aunt consented to the search. The court denied suppression of the gun found in the alleyway because defendant did not have standing to challenge the search of the apartment. It found that the only area of the apartment where he had an expectation of privacy was the living room where he slept, which excluded the area where the gun was found. In any event, the search was legal because the uncle consented to it.

At trial, the court submitted four counts to the jury, two each of first-degree robbery and second-degree criminal possession of a weapon. The jury returned a verdict convicting defendant only of second-degree criminal possession of a weapon.

Preliminarily, we find that the People did not waive their argument that defendant lacked standing to challenge the searches. "[T]he People must timely object to a defendant's failure to prove standing in order to preserve that issue for appellate review" ( People v. Hunter, 17 N.Y.3d 725, 726, 926 N.Y.S.2d 401, 950 N.E.2d 137 [2011] ; see People v. Stith, 69 N.Y.2d 313, 320, 514 N.Y.S.2d 201, 506 N.E.2d 911 [1987] ). Here, the People specifically argued at the suppression hearing that defendant did not establish standing to challenge the searches of the vehicle or apartment, and the court itself raised the issue of standing during counsel's argument and based its ruling on that doctrine. We reject defendant's argument that the People were required to raise the issue of standing before the close of evidence.

To have standing to challenge a search, a defendant must have a legitimate expectation of privacy in the area where the evidence was seized (see People v. Ramirez–Portoreal, 88 N.Y.2d 99, 109, 643 N.Y.S.2d 502, 666 N.E.2d 207 [1996] ). Defendant has the burden of establishing standing, and is entitled to rely on evidence elicited during the People's direct case (see People v. Burton, 6 N.Y.3d 584, 587–588, 815 N.Y.S.2d 7, 848 N.E.2d 454 [2006] ; People v. Gonzalez, 68 N.Y.2d 950, 951, 510 N.Y.S.2d 86, 502 N.E.2d 1001 [1986] ). "The number of times a person stays in a particular place, the length and nature of the stay, and indicia of connectedness and privacy, like change of clothes or sharing expenses or household burdens, are all factors ... [to] support a reasonable expectation of privacy" ( People v. Rodriguez, 69 N.Y.2d 159, 163, 513 N.Y.S.2d 75, 505 N.E.2d 586 [1987] ). Here, defendant's uncle told the police that defendant had stayed with his family "on and off" since he was five years old. He testified that, although defendant did not have his own room in the apartment and slept on the couch, he stored all of his clothes in the living room, and received mail at the apartment. This evidence suggests that defendant had a legitimate privacy interest in the apartment and surrounding curtilage, and we find that the court erred in finding that defendant lacked standing to challenge the propriety of the search of the apartment.

On the other hand, there is no dispute that defendant did not own the vehicle, and no evidence at the hearing showed that he or his girlfriend drove the vehicle to the hospital with the aunt's permission. That the keys to the vehicle were in defendant's girlfriend's possession is insufficient to confer standing on defendant (see People v. Jose, 252 A.D.2d 401, 403, 676 N.Y.S.2d 545 [1998]lv. denied 94 N.Y.2d 844, 702 N.Y.S.2d 574, 724 N.E.2d 366 [1999] ). Defendant's aunt did not testify, so we do not know whether she gave her nephew permission; further, although defendant's uncle testified that he told defendant to go to the hospital to have his leg treated, he did not state that he told him to borrow the car to get there. Under the circumstances, it cannot be said that defendant had a reasonable expectation of privacy in the car, and, accordingly, the court was correct in denying defendant's challenge to its search.

Although we find that defendant had standing to challenge the apartment search, we reject that challenge on the merits. The People bear the "heavy burden of proving the voluntariness" of a consent to search ( People v. Gonzalez, 39 N.Y.2d 122, 128, 383 N.Y.S.2d 215, 347 N.E.2d 575 [1976] ), since such consent "must be a free and unconstrained choice[, and o]fficial coercion, even if deviously subtle, nullifies apparent consent" ( id. at 124, 383 N.Y.S.2d 215, 347 N.E.2d 575 ). Whether a defendant's consent...