People v. Palmer

• Decision Date: 10 May 2018
• Docket Number: 108663,107732
• Citation: 77 N.Y.S.3d 557,161 A.D.3d 1291
• Parties: The PEOPLE of the State of New York, Appellant, v. Russell PALMER, also known as Goo, also known as Unc, Respondent.
• Court: New York Supreme Court — Appellate Division

161 A.D.3d 1291
77 N.Y.S.3d 557

The PEOPLE of the State of New York, Appellant,
v.
Russell PALMER, also known as Goo, also known as Unc, Respondent.

107732
108663

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

Calendar Date: March 26, 2018
Decided and Entered: May 10, 2018

77 N.Y.S.3d 559

Mitchell S. Kessler, Cohoes, for appellant, and appellant pro se.

P. David Soares, District Attorney, Albany (Emily A. Schultz, New York of counsel), for respondent.

Before: McCarthy, J.P., Devine, Mulvey, Aarons and Pritzker, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

Appeals (1) from a judgment of the County Court of Albany County (Herrick, J.), rendered June 22, 2015, upon a verdict convicting defendant of the crimes of murder in the second degree, conspiracy in the second degree, criminal possession of a weapon in the second degree (two counts) and criminal possession of a controlled substance in the second degree, and (2) by permission, from an order of said court, entered August 2, 2016, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

Defendant was charged by superseding indictment with murder in the second degree, conspiracy in the second degree, two counts of criminal possession of a weapon in the second degree, criminal possession of a controlled substance in the second degree and criminal possession of a controlled substance in the third degree stemming from the killing of Sylvester Scott (hereinafter the victim) in the City of Albany. Following several hearings and a joint jury trial with the codefendant, defendant was convicted of all charges except criminal possession of a controlled substance in the third degree.¹ County Court sentenced defendant, as a second felony offender, to an aggregate prison term of 39 years to life followed by five years of postrelease supervision. Thereafter, defendant

77 N.Y.S.3d 560

made a pro se motion pursuant to CPL 440.10 to vacate the judgment of conviction, which the court denied without a hearing. Defendant now appeals from the judgment of conviction and, by permission, from the denial of his CPL article 440 motion. We affirm.

Initially, defendant's arguments as to severance and a reverse Batson ruling were addressed in the appeal of the codefendant ( People v. Murray, 155 A.D.3d 1106, 1107–1110, 64 N.Y.S.3d 158 [2017] ). After considering defendant's arguments on these issues, we are unpersuaded that any reason has been set forth such that these issues should be decided differently in this appeal.

County Court properly denied the portion of defendant's pretrial omnibus motion in which he moved for an order suppressing any evidence acquired by means of an eavesdropping warrant due to lack of standing. In support of his motion, defendant's attorney submitted an affirmation contending that, although the eavesdropping warrant authorized the interception and recording of communications occurring over a telephone number assigned to someone other than defendant, he "has an expectation of privacy in any and all telephone conversation[s] that he may have made that may have been recorded by law enforcement that occurred prior to the time that an eavesdropping warrant was obtained against his phone line." As defendant did not submit sworn allegations of fact that he was a sender, receiver or participant in the subject phone conversations, he failed to demonstrate that he was an aggrieved person with standing to challenge the eavesdropping warrant (see CPLR 4506[2] ; cf. People v. Jeanty, 268 A.D.2d 675, 678–679, 702 N.Y.S.2d 194 [2000], lvs denied 94 N.Y.2d 945, 949, 710 N.Y.S.2d 1, 5, 731 N.E.2d 618, 622 [2000] ). In any event, even if defendant had standing, he is not entitled to a hearing to challenge the legality of the eavesdropping warrant because this Court already found, on the codefendant's direct appeal, that the warrant application "complied with the requirements of CPL article 700" (People v. Murray, 155 A.D.3d at 1107–1108, 64 N.Y.S.3d 158).

We disagree with defendant's contention that County Court erred in failing to suppress a statement given subsequent to his illegal arrest. Evidence obtained through illegal police action is not automatically subject to exclusion (see People v. Bradford, 15 N.Y.3d 329, 333, 910 N.Y.S.2d 771, 937 N.E.2d 528 [2010] ; People v. Stahl, 141 A.D.3d 962, 964, 35 N.Y.S.3d 779 [2016], lv denied 28 N.Y.3d 1127, 51 N.Y.S.3d 23, 73 N.E.3d 363 [2016], cert denied ––– U.S. ––––, 138 S.Ct. 222, 199 L.Ed.2d 120 [2017] ). "The application of the exclusionary rule requires a commonsense appraisal of whether the suppression of the challenged evidence will remove in the future the motive for similar improper police conduct" ( People v. Rogers, 52 N.Y.2d 527, 535, 439 N.Y.S.2d 96, 421 N.E.2d 491 [1981], cert denied 454 U.S. 898, 102 S.Ct. 399, 70 L.Ed.2d 214 [1981] ; see People v. John BB., 81 A.D.2d 188, 192, 440 N.Y.S.2d 387 [1981], affd 56 N.Y.2d 482, 453 N.Y.S.2d 158, 438 N.E.2d 864 [1982], cert denied 459 U.S. 1010, 103 S.Ct. 365, 74 L.Ed.2d 400 [1982] ). "Although the prosecution will be denied the poisoned fruit from the poisoned tree, at some point the chain of causation leading from the illegal activity to the challenged evidence may become so attenuated that the taint of the original illegality is removed" ( People v. Rogers, 52 N.Y.2d at 532–533, 439 N.Y.S.2d 96, 421 N.E.2d 491 [internal quotation marks and citations omitted]; see People v. Richardson, 9 A.D.3d 783, 788, 781 N.Y.S.2d 381 [2004],

77 N.Y.S.3d 561

lv denied 3 N.Y.3d 680, 784 N.Y.S.2d 18, 817 N.E.2d 836 [2004] ). When determining whether a confession or admission was produced by exploitation of an illegal arrest, three factors are relevant: "(1) [t]he temporal proximity of the arrest and [statement]; (2) the presence of intervening circumstances[;] and (3) the purpose...