People v. Smith
| Citation | 144 N.Y.S.3d 826,71 Misc.3d 828 |
| Decision Date | 09 March 2021 |
| Docket Number | 00268/2020 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Dennis SMITH, Defendant. |
| Court | United States State Supreme Court (New York) |
Appearing on behalf of the People: Assistant District Attorney Lauren Fitton, Kings County District Attorney's Office, 350 Jay Street, Brooklyn, NY 11201
Appearing on behalf of the defendant: Lawrence Mottola, Esq., 44 Court Street, Suite 1217, Brooklyn, NY 11201
On February 16, 2021, this Court conducted a combined Dunaway , Huntley and Mapp hearing. Police Officers Matthew Salzman, Joshua Navarro and Matthew McCurry testified for the People. The defendant did not present any evidence. The Court heard oral argument from the parties. The defendant's motion is granted in part and denied in part. The Court makes the following findings of fact and conclusions of law.
Police Officer Matthew McCurry testified that he has been employed by the New York Police Department ("NYPD") for 5½ years and is currently assigned to the 75th Precinct. On July 11, 2019, at approximately 8:00 p.m., McCurry and his partner responded to a radio run regarding a domestic dispute with a firearm at 252 Fountain Avenue, apartment 2L in Brooklyn. The 911 caller, the complaining witness's teenaged son, described the domestic dispute, and indicated that the assailant, the complaining witness's ex-boyfriend, kept a black briefcase containing guns inside the apartment.
McCurry arrived at the apartment where he spoke to the complaining witness, Mrs. Parris. She informed him that her boyfriend had choked her and "trashed" her apartment. Mrs. Parris's two sons—approximately fourteen and nine years old—were home at the time.1 McCurry observed that the apartment was in disarray as if a fight had taken place, with broken glass on the floor and clothing and other items strewn about. He asked Mrs. Parris if there were any guns in the apartment. Although she indicated she was unaware of that, her son showed McCurry the bedroom where he thought they might be found—they were not. McCurry did not search the apartment.
Police Officer Matthew Salzman testified that he has been employed by the NYPD for 5½ years and is currently assigned to the 75th Precinct. On July 11, 2019 at approximately 8:00 p.m., Salzman was in an unmarked police car with his partner, Officer Mancilla, when they responded to a radio run regarding a domestic dispute with a firearm in the vicinity of 252 Fountain Avenue in Brooklyn. The man sought in connection with that dispute was reportedly fleeing northbound on Fountain Avenue and described as African American, approximately thirty years old, with no facial hair, wearing glasses, a white shirt, blue pants, and black Nike sneakers. Salzman and Mancilla arrived within two minutes to the intersection of Fountain and Pitkin Avenues, approximately one block from the incident address, where a man who matched the description, ran in front of their unmarked car.2 Mancilla got out of the police car, stopped the defendant, and placed him in handcuffs. Salzman and Mancilla then waited for fellow officers to arrive with the complaining witness for a show up identification.
Police Officer Joshua Navarro testified that he has been employed by the NYPD for 6 years, and in July of 2019 was assigned to the 75th Precinct. On July 11, 2019 at approximately 8:00 p.m., Navarro and his partner received a radio run regarding a domestic dispute at 252 Fountain Avenue. Shortly after the radio run, Navarro learned that Salzman and Mancilla had a man in custody in connection with that radio run. Navarro went to their location where he observed the man, matching the description provided in the radio run, in their custody.3 Navarro took custody of the defendant and drove to 252 Fountain Avenue for a show up identification. At approximately 8:20 p.m., Mrs. Parris identified the defendant as her boyfriend, the man who had assaulted her and "trashed" her apartment.4
The defendant was transported to the 75th Precinct and at some point, McCurry and Officer Ardolinio questioned him. The officers asked the defendant if he possessed any guns. The defendant replied, in substance, that he had possessed guns in Pennsylvania, but then became nervous, defensive, aggressive, and agitated, and refused to answer additional questions. McCurry could not recall whether Miranda warnings were provided.
The officers, concerned that there still may have been guns at 252 Fountain Avenue arrived again at that location at approximately 12:45 a.m. Of the four officers, all but one—McCurry—were in plainclothes. One of the officers knocked on Mrs. Parris's door and when she answered, McCurry apologized for disturbing her. McCurry said the officers wanted to search for weapons that the defendant said might be in her apartment and asked if she would sign a consent form—he expressed concern for her children. Mrs. Parris, worried that a search would disturb her sleeping children, was assured by McCurry that they would not wake them. Mrs. Parris said ok and McCurry handed her a consent form which stated, inter alia , that she had been advised of her right to refuse to consent and could revoke her consent at any time. While she was reading the form, McCurry added, "none of this is going to be used against you." Mrs. Parris finished reading, opened the door, and said come in. McCurry thanked her, and the officers followed her inside. Mrs. Parris then re-read the consent form and signed it.5 As the apartment was still in some in disarray, the officers asked permission before moving aside items as they looked around.6 Moments later, McCurry's attention was drawn to a black briefcase next to the couch on top of two plastic storage containers. Inside the briefcase were two firearms, air pistols, and ammunition. One of the officers expressed relief, telling Mrs. Parris that the safety of the children was most important and reminded her that she had the officers’ phone numbers and should not hesitate to call if she needed anything. He reassured her that she was in no trouble.7
The day after the defendant's arrest, July 12, 2019, at approximately 12:00 p.m., McCurry and Police Officer Conway interviewed him.8 Conway began by asking the defendant for pedigree information—his name, date of birth, and address. The defendant provided his address as 252 Fountain Avenue, apartment 2L, but indicated that he had only been staying there for two days as the complaining witness had an order of protection against him. Conway then read the defendant Miranda warnings from a card. The defendant said "yes," indicating that he understood each question. When Conway asked the ultimate question, whether the defendant wanted to answer his questions, the defendant responded, "some questions, yes." Conway informed the defendant that he had the right to choose which questions to answer and then asked the defendant to tell him what happened. The defendant immediately began to speak, describing in great detail a verbal altercation with the complaining witness. After several minutes, Conway asked the defendant about guns, to which the defendant replied, "no comment." When Conway asked if the defendant would consent to a DNA swab, the defendant responded, in substance, not until I speak to my lawyer. Conway ceased all questioning of the defendant.
The Court fully credits the testimony of Police Officers Matthew McCurry, Matthew Salzman, and Joshua Navarro.
The People have met their burden of demonstrating that the police had probable cause to arrest the defendant.
Pursuant to Criminal Procedure Law Section 140.50, a police officer may stop an individual when the officer reasonably suspects that the individual has committed a crime. See Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ; People v. Cantor , 36 N.Y.2d 106, 365 N.Y.S.2d 509, 324 N.E.2d 872 (1975). A court, in determining whether a police officer has reasonable suspicion, must focus on a common-sense evaluation of the events leading to the individual's detention. See People v. Hicks , 68 N.Y.2d 234, 508 N.Y.S.2d 163, 500 N.E.2d 861 (1986).
In the instant matter, officers learned from the 911 caller identifying himself as the complaining witness's teenaged son, that the defendant—his mother's ex-boyfriend—had engaged in a domestic dispute with his mother and that a firearm had been involved in that dispute. The teenager provided a precise physical description of the defendant—an African American man, approximately thirty years old, with no facial hair, wearing glasses, a white shirt, blue pants, and black Nike sneakers. The teenager further provided the direction of the defendant's flight from his apartment—northbound on Fountain Avenue. Within two minutes of the 911 call and one block from the apartment, officers observed a man fitting that precise description running in front of their unmarked police car, headed in the direction the teenager had indicated. Under the totality of the circumstances, the officers had reasonable suspicion to detain the defendant pending a show up identification. See generally People v. Ramos , 74 A.D.3d 991, 904 N.Y.S.2d 81 (2d Dept. 2010) ; People v. Tatum , 39 A.D.3d 571, 835 N.Y.S.2d 217 (2d Dept. 2007) ; People v. Thomas , 294 A.D.2d 607, 743 N.Y.S.2d 280 (2d Dept. 2002) ; People v. Lynch , 285 A.D.2d 518, 728 N.Y.S.2d 489 (2d Dept. 2001).9 That the defendant was handcuffed and placed in a police car to be transported approximately one block to await the show up identification was not impermissible—the identified 911 caller made plain that the defendant had just been involved in a domestic dispute during which a firearm was displayed, provided significant and precise details regarding the defendant's possession of more than one such firearm, and the defendant was observed fleeing the scene within minutes of that domestic dispute. See generally People...
To continue reading
Request your trial