People v. Vernon B.

CourtNew York Criminal Court
Citation2012 N.Y. Slip Op. 22329,954 N.Y.S.2d 835,38 Misc.3d 343
PartiesThe PEOPLE of the State of New York v. VERNON B., Defendant.
Decision Date19 November 2012

38 Misc.3d 343
954 N.Y.S.2d 835
2012 N.Y. Slip Op. 22329

The PEOPLE of the State of New York
VERNON B., Defendant.

Criminal Court, City of New York,
Kings County.

Nov. 19, 2012.

[954 N.Y.S.2d 836]

The Legal Aid Society, by Roy Wasserman, for defendant.

ADA Brandon C. Smith, for The Kings County District Attorney.


[38 Misc.3d 344]In this case, the People sought an order compelling defendant to submit to a DNA swab to determine if his DNA were on a weapon, a Taurus 9mm handgun, which the police allege they saw him toss from the window of his residence. I held a decision on the swab order in abeyance pending a suppression hearing, for if the gun had been seized in violation of defendant's privacy rights, then the swab order would not issue. The hearing was conducted, and I ordered defendant to submit to [38 Misc.3d 345]the DNA swab because I determined that the police had acted lawfully when they seized the gun. This decision explains why.

Four witnesses testified at the Payton/Mapp hearing ( see Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 [1980];Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 [1961] ). The prosecution proffered Police Officers Robert Mayer and Stephen Berardi, and defendant his mother and Rosemarie Jackson, an investigator employed by defendant's attorney, the Legal Aid Society. The testimony of all four witnesses was truthful. Further, there was no conflict-certainly no substantial conflict-between the versions of the day's events to which each witness testified. Importantly, defendant's mother's testimony correlated with that of Officer Berardi with regard to their encounter inside defendant's home.

[954 N.Y.S.2d 837]

My findings of fact are as follows.

On November 10, 2011, at approximately 12:25 PM, Officer Mayer and his fellow officers, all in plain clothes, went to the vicinity of 612 Jerome Street, Brooklyn, as a result of a tip provided by a confidential informant that someone possessed a gun there. The address pertained to a two-story residential building that was attached on one side to other two-story buildings and surrounded by a yard on the other side and in the back.

The police did not seek a search warrant because their informant, out of fear, did not wish to go to the courthouse to swear out a warrant. As a result, the officers' sergeant decided that his team would investigate the tip by seeking consent to search the house from its occupants.

Officer Mayer's role in this endeavor was to station himself, secretly and prophylactically, within view of the rear of the house while the other officers approached the house from the front. He maintained contact with his team via a police radio. To access a view of the rear of the house, Officer Mayer entered a driveway on Livonia Avenue that led to the backyard of 612 Jerome Street. The driveway, which was part of a parking lot, was open to the public. Officer Mayer positioned himself at the corner of, and outside, a fence that enclosed the backyard of 612 Jerome Street. Although the backyard was overgrown with vegetation, Officer Mayer's vantage point permitted him to see the windows on the ground floor of the house, through the fence, which was not solid.

At some point, Officer Mayer observed defendant appear at a back window of the house. Defendant ripped a plastic cover off the window, threw a black bag from inside the house to the [38 Misc.3d 346]ground outside and dropped what appeared to be a silver, or silver and black, firearm onto or into the bag. Officer Mayer was twenty feet away at the time and had an unobstructed view of these actions.

When he made his observations, Officer Mayer communicated to his team, “Frankie just came out the window,” which was his coded way of referring to a gun. His team responded an acknowledgment by radio. Subsequently, they informed Officer Mayer that the location was secure. He then jumped over the fence, retrieved the gun that had been thrown out the window and entered the house through the window. No physical evidence was recovered from inside. Officer Mayer conceded that none of the residents had given police permission to enter the yard.

Officer Berardi's testimony described what else occurred when Officer Mayer was at the back of the house. Officer Berardi and a sergeant knocked on the front door, which a woman, who identified herself as the mother of the household, opened. The officers explained that they believed that there was a firearm in the house. Defendant's mother invited them in. While they were in the vestibule, the officers received the above-described radio transmission from Officer Mayer to the effect that a gun had come out the window. The sergeant acknowledged the transmission and told Officer Berardi to check the house for occupants. An individual, described as irate, emerged from a room in the back of the house and told the officers to get out of his house. After a struggle, the officers succeeded in placing him under arrest. Officer Mayer identified that individual to Officer Berardi as the person he saw throw the gun out the window. He is the defendant. The officers also arrested another individual who was asleep in the bedroom from which the gun had been tossed.

Defendant's mother testified consistently with Officer Berardi. According to her, on the day in question she was living at

[954 N.Y.S.2d 838]

612 Jerome Street with defendant and two other family members. The police knocked on the door of her house. When she responded, she learned that the officers had been told that someone kept a gun in the house. She invited the officers into the hall. She told the officers that her son (defendant) and a friend were asleep in his room, knocked on their door and told them to get up.

While the officers were inside her house, defendant's mother heard on the police radio that someone had thrown a gun out a window. The officers then pushed her aside, ran towards the [38 Misc.3d 347]back of the house and grabbed defendant, who had come out of his room. Additional officers came into the house. Defendant's mother testified that the officers said that they had found a gun in the backyard.

The final witness, Rosemarie Jackson, testified that she went to the rear of 612 Jerome Street on September 21, 2012, to take pictures and make observations of the backyard. Although vegetation blocked her view of the subject window, her observations were made more than ten months after the day in question and at a different time of year. Thus, although I credit her testimony, I do not find it to conflict with Officer Mayer's that he was able to see the window from behind the yard on November 10, 2011.

The Fourth Amendment to the United States Constitution protects the integrity of an individual's house and the private area surrounding the house, known as its “curtilage.” As the Supreme Court recently explained in United States v. Jones, ––– U.S. ––––, 132 S.Ct. 945, 949–950, 181 L.Ed.2d 911 [2012], “[t]he text of the Fourth Amendment reflects its close connection to property.... Consistent with this understanding, our Fourth Amendment jurisprudence was tied to common-law trespass .... and was understood to embody a particular concern for government trespass upon the areas (persons, houses, papers, and effects') it enumerates.” This case raises, initially, the question whether the Fourth Amendment affords protection to defendant's backyard and, if so, whether Officer Mayer violated the Fourth Amendment when he jumped over the fence to enter defendant's backyard to retrieve the gun.

The Supreme Court has identified four factors that help resolve whether an area outside the house is within its curtilage: its proximity to the house, whether it is within an enclosure that surrounds the house, the nature of the uses to which it is put, and the steps that the resident takes to protect the area from observation ( United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 [1987] ). Here, the backyard was immediately next to the house and extended only approximately twenty feet beyond its rear. It was enclosed within a perimeter fence. There was no testimony as to the uses to which the backyard was put other than what can be inferred from the fact that it was overgrown with vegetation, i.e., it was neglected. As to the final factor—steps taken by the resident to protect the yard from observation—the yard was enclosed by a fence through which people could see, yet it was allowed to overgrow. Together, these factors suggest that, although it was neglected and visible to outsiders, the resident intended [38 Misc.3d 348]that the backyard be treated as part of the house itself. Because I conclude that the backyard lay within the house's curtilage, it was “under the home's umbrella' of Fourth Amendment protection” ( United States v. Dunn, 480 U.S. at 300–301, 107 S.Ct. 1134 [1987];People v. Abruzzi, 52 A.D.2d 499, 385 N.Y.S.2d 94 [2nd Dept.1976], affd.42 N.Y.2d 813, 396 N.Y.S.2d 649, 364 N.E.2d 1342 [1977] ). This conclusion is, not coincidentally, consistent

[954 N.Y.S.2d 839]

with New York's statutory definition of trespass, which would apply to Officer Mayer's unlicensed entry into defendant's backyard ( see PL §§ 140.05 [“A person is guilty of trespass when he knowingly enters ... unlawfully in or upon premises.”] and 140.00 [defining “premises” to include real property and “ enter[ing] ... unlawfully” to include an unlicenced entry] ).

Accordingly, although Officer Mayer made his observations from a publicly accessible area beyond the defendant's house and its curtilage ( People v. Alberti, 111 A.D.2d 860, 490 N.Y.S.2d 261 [2nd Dept],appl. denied66 N.Y.2d 760, 497 N.Y.S.2d 1034, 488 N.E.2d 120 [1985] [officer located upon public right-of-way was entitled to observe what was...

To continue reading

Request your trial
1 practice notes
  • People v. Daye, 2016BX055283
    • United States
    • New York Criminal Court
    • 20 de junho de 2018
    ...813 ; People v. Theodore , 114 AD3d 814 ; People v. Saurini, 201 AD2d 869 ; People v. Juliano , 54 Misc 3d 629 ; People v. Vernon B. , 38 Misc 3d 343 ). "The curtilage of the home will ordinarily be construed to include at least the yard around the house," 31 Carmody–Wait 2d § 173.67 ; (see......
1 cases
  • People v. Daye
    • United States
    • New York Criminal Court
    • 20 de junho de 2018
    ...813 ; People v. Theodore , 114 AD3d 814 ; People v. Saurini, 201 AD2d 869 ; People v. Juliano , 54 Misc 3d 629 ; People v. Vernon B. , 38 Misc 3d 343 ). "The curtilage of the home will ordinarily be construed to include at least the yard around the house," 31 Carmody–Wait 2d § 173.67 ; (see......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT