People v. McUllin

• Decision Date: 25 July 2017
• Docket Number: 3517, 4964/11.
• Citation: 152 A.D.3d 461,59 N.Y.S.3d 329
• Parties: The PEOPLE of the State of New York, Respondent, v. Devontae McULLIN, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

152 A.D.3d 461

59 N.Y.S.3d 329

The PEOPLE of the State of New York, Respondent,

v.Devontae McULLIN, Defendant–Appellant.

3517, 4964/11.

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

July 25, 2017.

Seymour W. James, Jr., The Legal Aid Society, New York (Arthur H. Hopkirk of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (David M. Cohn of counsel), for respondent.

FRIEDMAN, J.P., SWEENY, RENWICK, MANZANET–DANIELS, ANDRIAS, JJ.

Appeal from judgment, Supreme Court, New York County (Thomas Farber, J.), rendered January 22, 2013, convicting defendant, upon his plea of guilty, of burglary in the first degree (two counts) and attempted rape in the first degree, and sentencing him to concurrent terms of 13 years, unanimously held in abeyance, and the matter remitted for a Mapp/Dunaway hearing to determine whether defendant was arrested without probable cause and, if so, what evidence, if any, should be suppressed on the ground that it was obtained as the result of such unlawful arrest.

Defendant was indicted on the charges to which he ultimately pleaded guilty based on an incident that occurred at approximately 11:30 a.m. on October 11, 2011, at an apartment in a building on West 130th Street in Manhattan. According to the felony complaint, which was signed by a police detective at about 3:50 p.m. on October 13, 2011, the victim told the police that she had been attacked by a knife-wielding "unknown male" she had discovered in her bedroom; the attacker had fled when another person tried to open the door to the room. While the victim herself apparently was unable to tie defendant to the crime, the complaint states that another informant told the police—at an unspecified time—that he or she had

"observed the defendant i) standing on the fire escape of the above-stated location [of the crime], ii) remove a knife from his backpack and place said knife in his pants, and iii) climb through a window of the above-stated apartment."

According to the complaint, a knife was recovered from the crime scene.

The People's voluntary disclosure form (VDF) states that defendant was arrested at 11:22 a.m. on October 13, 2011, and that he was identified by an unnamed witness as a suspect through a lineup conducted at 11:25 a.m. on October 13, 2011 (i.e., three minutes after the arrest).¹ The VDF states that both the arrest and the identification took place at 221 East 123rd Street, which is the address of a police station, and identifies two items of physical evidence in the People's possession, a knife and "pants." The VDF also discloses that, before the stated time of the arrest (11:22 a.m. on October 13), defendant had made two statements to a police detective, both at the same police station, the first statement at 11:30 p.m. on October 12 (the night before the arrest) and the second at 7:15 a.m. on October 13 (slightly more than four hours before the arrest). Accordingly, it appears from the VDF that defendant somehow arrived at the police station on the night of October 12, 2011, was questioned, presumably spent the night at the station, was questioned again early the next morning, and was formally placed under arrest around midday. The VDF provides no information about the manner in which defendant came to be present at the police station on the night of October 12, 2011, or the basis on which he came to the attention of the police on that day.²

In his omnibus motion seeking various forms of relief, defendant sought to suppress certain of the evidence against him—physical evidence described as "various clothing items recovered from the defendant," his statements to the police on October 12 and 13, and the lineup identification that had been obtained on October 13—on various grounds, including, as relevant to this appeal, the claim that this evidence was obtained as the result of the police having unlawfully seized defendant's person at his home, without probable cause, on October 12, 2011, which seizure allegedly violated his constitutional rights ( U.S. Const., 4th, 14th Amends; NY Const., art I, § 12 ). In the alternative to an order suppressing all "tangible or testimonial fruits of his seizure and search by the police," defendant sought hearings on the issues raised, including a Huntley hearing on the voluntariness of his statements to the police and a Wade hearing on the propriety of the lineup identification.

In support of his contention that he had been unlawfully seized at his home on October 12, 2011, without probable cause, defendant, through his counsel, averred:

"Based on the limited information available to the defense, the defendant states that he was in his home on October 12, 2011. The police arrived at his home, and entered without his permission, or the permission of any member of the household. On information and belief, the police did not possess a search and/or arrest warrant. At the time that he was seized, searched and arrested by the police[,] he had not been engaging in any unlawful or suspicious conduct, and was not in possession of any contraband. He was not acting in an illegal or suspicious manner prior to being detained by police authorities. He was seized, searched and arrested by the police without a warrant or probable cause."

Defendant stated that it was difficult for him to meet his statutory obligation under CPL 710.60(1) to provide sworn allegations of fact controverting the People's facts, because the People had not disclosed how he had been identified as a suspect before he was arrested. In this regard, defendant, through his counsel, further averred, in pertinent part (citations and paragraph numbers omitted):

"The defendant is at a substantial informational disadvantage, in that he has not been informed by the prosecution as to the circumstances of his seizure by the police. The People have informed the defendant that he is accused of various crimes allegedly committed the day before [his alleged seizure], but have not informed the defendant which police officers seized the defendant .... The defendant challenges the reliability and basis of knowledge of any informant who may have transmitted any information to the police, on which the police officers may have relied in seizing, searching and arresting the defendant.

"Also, the prosecution has not informed the defendant whether the seizing officers had relied upon any information provided by civilian witnesses, or, if so, the identity, reliability or basis of knowledge of any such witnesses, or the content of any such information or description of the defendant. No witness information is included in the People's Voluntary Disclosure Form, which is to date the only source of information about the People's evidence that has been provided to the defense.

"In the absence of the foregoing information or any other information regarding the circumstances of the defendant's initial seizure by the police, requiring probable cause, the defendant is not in a position to controvert with greater specificity the basis for his seizure by the police."

In their opposition to the omnibus motion, the People did not specifically address defendant's claim that he had been arrested at his home on October 12. Rather, the People averred in conclusory fashion that "defendant was arrested lawfully," and "controvert[ed] all allegations to the contrary," without offering any factual detail. Although defendant's claims about his arrest are seemingly at odds with the VDF's statement that he was arrested at a police station at 11:22 a.m. on October 13, the People concluded that he was not entitled to a hearing on the suppression motion "because the defendant's motion does not establish a factual dispute requiring a hearing." To the extent defendant's motion sought additional factual discovery, the People took the position that the VDF had already "provide[d] all of the pretrial discovery to which the defendant is entitled."

By order entered on or about January 10, 2012, Supreme Court, as relevant to this appeal, granted defendant a Wade hearing (on the propriety of the procedure by which the identification evidence had been obtained) and a Huntley hearing (on the voluntariness of his statements) but denied him any relief based on the claim that the police had lacked probable cause to arrest him. With respect to the branch of the motion seeking to suppress physical evidence as the fruit of an allegedly unlawful arrest (see Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 [1961] ), the court stated that "[d]efendant's factual allegation[s] are insufficient in light of the information contained on the felony [complaint] and in the VDF," but granted defendant "leave to renew upon appropriate papers within 14 days of the date of the date [sic] of this order or such further time as approved by the Court." With respect to the branch of the motion seeking to suppress defendant's statements as the fruit of an allegedly unlawful arrest (see Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 [1979] ), the court stated that "[d]efendant has failed to present factual allegations sufficient to support such relief," without granting leave to renew.

After the court rendered the foregoing decision, but before the Huntley/Wade hearing had been held, defendant pleaded guilty as indicated. He now appeals from the ensuing judgment of conviction, arguing principally that Supreme Court erred in summarily denying him a hearing on his motion to suppress evidence on the ground that it was obtained as the result of an arrest made without probable cause. For the reasons discussed below, we conclude that, given the limited information available to him, defendant made sufficient factual allegations to place at issue whether the People had probable cause to arrest him, whenever the arrest occurred. Accordingly, we hold the appeal in abeyance pending a hearing to determine that issue and, if it is resolved in defendant's favor, the extent to which the...