People v. Shakeem B.

• Decision Date: 24 January 2017
• Parties: The PEOPLE of the State of New York, Respondent, v. SHAKEEM B. (Anonymous), Appellant.
• Court: New York Supreme Court — Appellate Term

55 Misc.3d 47
51 N.Y.S.3d 779

The PEOPLE of the State of New York, Respondent,
v.
SHAKEEM B. (Anonymous), Appellant.

Supreme Court, Appellate Term, Second Dept., 2, 11 & 13 Judicial Dist.

Jan. 24, 2017.

51 N.Y.S.3d 780

Lynn W.L. Fahey, New York City (Rahshanda Sibley of counsel), for appellant.

Kenneth P. Thompson, District Attorney, Brooklyn (Leonard Joblove, Sholom J. Twerseky and Claibourne Henry of counsel), for respondent.

PRESENT: ALIOTTA, J.P., PESCE and SOLOMON, JJ.

51 N.Y.S.3d 781

Consolidated appeal from (1) a judgment of the Criminal Court of the City of New York, Kings County (John T. Hecht, J.), rendered January 3, 2013, and (2) an amended judgment of the same court (Robert D. Kalish, J.) rendered July 15, 2013. The judgment rendered January 3, 2013 adjudicated defendant a youthful offender, after a nonjury trial at which he was found guilty of criminal possession of a weapon in the fourth degree. The appeal from the judgment brings up for review the denial, after a hearing, of the branch of defendant's omnibus motion seeking to suppress physical evidence. The amended judgment rendered July 15, 2013 revoked a sentence of probation previously imposed by the same court, upon a finding, upon his admission, that defendant had violated a condition thereof, and resentenced him to a term of three months of imprisonment on his adjudication as a youthful offender.

55 Misc.3d 48

ORDERED that the judgment adjudicating defendant a youthful offender is affirmed; and it is further,

ORDERED that the appeal from the amended judgment adjudicating defendant a youthful offender is dismissed as abandoned.

55 Misc.3d 49

Defendant, who was 17 years old, was charged with criminal possession of a weapon in the fourth degree (Penal Law § 265.01[1] ) after the police had recovered a gun from a closet which they believed was in defendant's bedroom.

At a pretrial Mapp hearing, New York City Police Officer Thomas Fusco testified that, at approximately 2:30 p.m. on May 22, 2012, he was with his partner and a sergeant, when he received a radio transmission that shots had been fired and that a male had been shot at 1305 Loring Avenue in Brooklyn. When Fusco arrived at the location, he observed medical personnel working on defendant, the person that had been shot. Fusco had met defendant during an investigation of a prior unrelated incident, although defendant had not been the target of that investigation. Defendant was taken to Brookdale Hospital.

About 30 minutes after they arrived at the location of the shooting, an unidentified black female civilian told the officers that defendant had been shot during an altercation. According to the civilian, who wanted to remain anonymous, defendant had entered the building at 1305 Loring Avenue with a firearm. At approximately 3:15 p.m., the officers went to apartment 1–C at 1305 Loring Avenue. Officer Fusco knew that defendant lived in that apartment because he had been there while investigating the prior incident. Fusco knocked on the door of the apartment, and defendant's sister, who was 18 years old, answered the door. Fusco, who displayed his shield, recognized her from the prior investigation. None of the three officers had their guns drawn. They informed defendant's sister that defendant had been shot, but she was already aware of that. She did not appear to be concerned or upset. Fusco told her that they were investigating whether there was a firearm in the location. No one else was home at the time. Defendant's sister let the officers into the apartment. She signed a "consent to search" form after she had read the document and the officers had explained it to her. Fusco told her that the officers were there to remove a gun "if there was a possibility of it being there."

Officer Fusco asked defendant's sister to call her mother and to tell her mother, in the event she did not yet know, that defendant had been shot, that Fusco was investigating, and that Fusco had met the mother previously. One of the officers spoke to defendant's mother and told her that they were investigating whether a firearm was at the location. She gave the officers "verbal consent over the phone to search."

51 N.Y.S.3d 782

55 Misc.3d 50

The officers asked defendant's sister where defendant slept. She led them to a bedroom. Fusco did not remember asking her whether anyone else slept in that bedroom. The room was messy. It contained men's clothes, jeans, sweatshirts, and T-shirts with graphic prints. Fusco discovered a firearm, a .22 revolver, in the bedroom closet, under some clothing. Fusco also recovered "assorted live rounds" for different firearms and "two magazines of high capacity ammo feeders" for semiautomatic weapons. In addition, he discovered an envelope containing defendant's name and address, and the address of an inmate in a correctional facility. The envelope was ripped on the side. Fusco did not know exactly where he had recovered the envelope. He did not remember what was inside the envelope.

After the gun, bullets, magazines, and envelope were recovered, defendant's stepfather arrived at the apartment, and signed a consent to search form. The officers informed defendant's stepfather of defendant's condition and the reason why they were at the apartment.

During cross-examination, Fusco testified that his unit had been informed by the Kings County District Attorney's office "that there was an investigation in regard to consent to search forms." Fusco did not recall whether defendant's sister was told that she could refuse to sign the consent form.

Defendant presented no evidence and called no witnesses at the hearing.

Defendant's counsel argued that the gun should be suppressed because "the request to search was not supported by founded circumstances of criminality." The People did not satisfy their heavy burden of proving the voluntariness of the consent to search. There was no evidence of exigency or emergency. Furthermore, defendant's sister lacked the authority to consent to the search of the bedroom. Counsel argued that the anonymous female civilian who told Officer Fusco that defendant had a gun did not exist and that Fusco's testimony was not credible.

The hearing court found Officer Fusco's testimony to be credible. The court determined that the information supplied by the unidentified woman provided at least an objective credible reason for the police to go to defendant's home. However, even if the testimony "was a creation of the police," defendant's sister voluntarily gave the police consent to search the apartment. The court indicated that defendant's sister, mother, and

55 Misc.3d 51

stepfather, all of whom were adults who were not in custody or under arrest, consented to the search. They were not evasive or uncooperative. The police did not use force or...