People v. Stringfellow
| Decision Date | 09 March 1984 |
| Citation | 474 N.Y.S.2d 208,123 Misc.2d 476 |
| Parties | PEOPLE of the State of New York v. Lawrence STRINGFELLOW. |
| Court | New York Supreme Court |
Elizabeth Holtzman, Dist. Atty., Kings County by Valentina Hoskin, Asst. Dist. Atty., Brooklyn, for the People.
Anthony J. Migliaccio, Brooklyn, for defendant.
The defendant, Lawrence Stringfellow is charged with inter alia, possession of a deadly weapon (Penal Law, § 265.02) and possession of a controlled substance (Penal Law § 220.21).
Various hearings held pursuant to prior order are being decided hereby including two separate Huntley hearings, a motion to controvert a search warrant and suppress evidence secured pursuant thereto.
Based upon the credible evidence adduced at the hearing, the court makes the following findings of fact and conclusions of law.
On May 14, 1983, the defendant returned home to his apartment within a non-multiple dwelling only to find the outer door was unable to be opened with his key. His landlady who advised him that the lock was changed and he would not be allowed back into his apartment without police intervention. There was no testimony in this case The defendant called the police from a street telephone rather than the telephone within his apartment. Upon the arrival of the police, the defendant was observed in the street where the confrontation between the landlady and the defendant-tenant continued. The police mediated dispute, moved from the outside sidewalk and stoop to the interior hallway of the first floor and finally into the defendant's apartment. The court finds that the police entry into the apartment was with the permission and consent of the tenant but was within the parameters of the exigency created by the landlady's lockout.
of a properly obtained warrant of eviction or antecedent court proceedings.
While in the tenant's apartment, the police observed, in plain view, within an open closet, various drug paraphernalia, including a scale, white powder commercially labelled Lactose, a mirror with white dust thereon and a razor. These items were resting on a closed safe.
The police had never seen a safe in any apartment within this precinct. The police thereupon arrested the tenant for the crime of Possession of Drug Paraphernalia. They then gave him his Miranda warnings, which the defendant knowingly, voluntarily and intelligently waived. The tenant-defendant herein, had received and understood Miranda warnings on some previous occasions.
The police thereupon asked what was in the safe and the tenant replied a .22 Magnum. They then determined that he had no license for the gun. The police then took the various paraphernalia, the safe and the defendant into custody. The defendant was issued a DAT at the precinct and was released.
The police, meanwhile, secured a search warrant from Mr. Justice (then Judge) John Leone, to allow the opening of the safe now in their custody. The search warrant was executed upon and the magnum along with four ounces of cocaine and other items were retrieved.
The defendant thereupon was located and shown the contraband. He whereupon slapped his forehead, acknowledging ownership and asked the police officer how he had obtained it. The police officer then informed him that he had obtained a search warrant. Thereafter, defendant was given Miranda warnings which he understood and waived. He made certain additional inculpatory statements.
The police entry into the defendant's apartment was not subject to the same guidelines as would apply to a targeted criminal investigation. Originally, the police were not involved in a criminal investigation, but were merely there to assist in resolving a landlord-tenant dispute under their general obligation to assist people in distress. Thus, the entry was permissible (People v. Gallmon, 19 N.Y.2d 389, 280 N.Y.S.2d 356, 227 N.E.2d 284, cert den 88 S.Ct. 832, 390 U.S. 911, 19 L.Ed.2d 884 [1967] ); People v. Mitchell, 39 N.Y.2d 173, 383 N.Y.S.2d 246, 347 N.E.2d 607 cert. den. 426 U.S. 953, 96 S.Ct. 3178, 49 L.Ed.2d 1191; People v. Lenart, 91 A.D.2d 132, 457 N.Y.S.2d 878; People v. Kelly, 83 A.D.2d 648, 422 N.Y.S.2d 188).
The defendant allowed the police to enter to mediate the lockout.
The drug paraphernalia, resting on a safe inside an open walkin closet was in plain view (People v. Earley, 76 A.D.2d 335, 430 N.Y.S.2d 641 [1980] ).
In order for any statement uttered by a defendant to anyone acting on behalf of the state to be admitted into evidence against that defendant, it must have been made voluntarily. The burden of proving the voluntariness of the statement beyond a reasonable doubt is on the People (People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 [1965] ). To determine whether the defendant's will was overborne, the court must view the "totality of the circumstances" (Clewis v. Texas, 306 U.S. 707, 708, 87 S.Ct. 1338, 1339, 18 L.Ed.2d 423 [1967]; People v. Anderson 42 N.Y.2d 35, 396 N.Y.S.2d 625, 364 N.E.2d 1318 [1977] ).
The defendant's first response to police inquiry as to the contents of the safe is admissible. Defendant having been given his Miranda warnings gave no indication that he wanted to exercise his right to silence. Defendant freely and voluntarily made this statement (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 [1966] ).
A search warrant was necessary in order to search the safe in which the defendant had a reasonable expectation of privacy (United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 [1977] ). However, there was no evidence that the search warrant was anything other than properly issued. Thus, the items recovered from the safe; to wit, a gun and cocaine are admissible.
However, as to the station house inquiry, this court holds that a waiver of Miranda rights must be made in the presence of an attorney after a D.A.T. has been issued in a related criminal charge.
The rule is clear that where a defendant has a pending matter, in which he is represented by counsel, unrelated to the present charge, the defendant's right to counsel attaches in the second case despite the fact that he has no attorney in that case (People v. Rogers, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 397 N.E.2d 709 [1979]; People v. Bartolomeo, 53 N.Y.2d 225, 440 N.Y.S.2d 894, 423 N.E.2d 371 [1981] ). Thus, a defendant may not waive his Miranda rights, in the second case, under these circumstances without the presence of counsel (People v. Rogers, supra; People v. Bartolomeo, supra ).
Further, a defendant may not make an uncounseled waiver of Miranda rights, (1) after a request for an attorney; People v. Cunningham, 49 N.Y.2d 203, 424 N.Y.S.2d 421, 400 N.E.2d 360 [1980]; People v. Dean, 47 N.Y.2d 967, 419 N.Y.S.2d 957, 393 N.E.2d 1030 [1969], (2) the commencement of formal adversarial proceedings; People v. Samuels, 49 N.Y.2d 218, 424 N.Y.S.2d 892, 400 N.E.2d 1344 [1980]; People v. Settles, 46 N.Y.2d 154, 412 N.Y.S.2d 874, 385 N.E.2d 612, or (3) when there is a second arrest in a related proceeding (People v. Ermo, 47 N.Y.2d 863, 419 N.Y.S.2d 65, 392 N.E.2d 1248 [1979]; People v. Townes, 41 N.Y.2d 97, 390 N.Y.S.2d 893, 359 N.E.2d 402).
In the case at bar, a D.A.T. unaccompanied by a filed complaint does not act as the commencement of criminal proceedings CPL § 1.20, McClellan v. NYCTA, 111 Misc.2d 735, 444 N.Y.S.2d 985 [1981]; contra (Susser v. Fried, 115 Misc.2d 968, 455 N.Y.S.2d...
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