People v. De Vyver

• Decision Date: 29 July 1982
• Parties: The PEOPLE of the State of New York, Respondent, v. Calvin De VYVER, Also Known as Douglas Wilson, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 915

453 N.Y.S.2d 915

89 A.D.2d 745

The PEOPLE of the State of New York, Respondent, v. Calvin De VYVER, Also Known as Douglas Wilson, Appellant.

Supreme Court, Appellate Division Third Department.

July 29, 1982.

Vincent F. Nicolosi, Bayside, for appellant.

Michael Kavanagh, Ulster County Dist. Atty., Kingston (Marsha Solomon, Kingston, of counsel), for respondent.

Before SWEENEY, J. P., and KANE, CASEY, WEISS and LEVINE, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the County Court of Ulster County, rendered April 28, 1981, upon a verdict convicting defendant of the crimes of kidnapping in the second degree, sodomy in the second degree, and criminal possession of a weapon in the third degree.

Alice Sywilock first met defendant, known as Father Ron, in 1975, when she was experiencing difficulties raising her four sons and her husband John Sywilock (the boys' stepfather) was in prison. Defendant befriended the family helping with the boys and eventually taking Brian to live with him with the mother's consent. Wayne, age 8, often stayed with Brian and defendant on weekends. In 1977, when John Sywilock was released from prison, he unsuccessfully attempted to get Brian to return home. Wayne was prohibited from visiting defendant. In May, 1978, Wayne's brother, Donald, overheard defendant promising Wayne a motorcycle if he would leave home. On Easter Sunday of 1979, Wayne telephoned his mother to say he had just seen defendant, who wanted to talk to him. Two days later, Wayne did not return home and Mrs. Sywilock called the police and filed a missing persons report. Defendant denied any knowledge of Wayne's whereabouts. Defendant denied involvement when questioned by the New York City Missing Persons Squad (NYCMPS). In November, 1979, Kenneth Ruffo, Special Agent for the FBI, followed defendant to New Paltz, and learned that he was using the assumed name Douglas R. Wilson, and was living in Modena, where Ruffo observed him and "some other smaller individuals" inside a trailer home. On January 20, 1980, Wayne Smith, Town Justice of Modena, identified defendant from a photograph and confirmed that two boys were living with him. The next day, armed with an arrest warrant for the kidnapping of Wayne Sperry, members of the State Police, NYCMPS, and FBI went to defendant's residence. After receiving no response to knocks on the door, they forcibly entered the trailer. State Police Investigator Gardner observed defendant reaching toward an open dresser drawer. After ordering defendant away, Gardner removed a gun from the drawer. Wayne Sperry was found naked in defendant's bed. Defendant was arrested.

Defendant was indicted in a four-count indictment charging him with kidnapping in the first and second degree, sodomy in the second degree, and criminal possession of a weapon in the third degree. Defendant's pretrial motion to sever the weapon count was denied. Following a jury trial, defendant was convicted on all but the count charging kidnapping in the first degree. This appeal ensued.

Defendant argues that his Fourth Amendment rights were violated by the warrantless arrest at his home on January 21, 1980. ^* He relies principally on the rule set forth in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 which proscribes a warrantless, nonconsensual entry into a suspect's home to make a routine felony arrest. Although this court has recently held otherwise (see People v. Graham, 76 A.D.2d 228, 431 N.Y.S.2d 209, mot. for lv. to app. den. 53 N.Y.2d 943, 440 N.Y.S.2d 1042, 423 N.E.2d 408; see, also, People v. DelGaizo, 84 A.D.2d 646, 444 N.Y.S.2d 368), it is now clear that Payton applies retroactively to an arrest that occurred before that decision in a case pending on direct appeal (U. S. v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 ). Here, defendant's arrest predates Payton, while the suppression hearing and conviction are post-Payton. Under these circumstances, the arrest must be scrutinized under the Payton standard, and since the warrant was held invalid, our query is whether the facts and circumstances presented an exigency justifying the intrusion. Prior to entry, the police knocked on the door and announced their identity and purpose. Someone responded but did not open the door. They heard footsteps inside retreating toward the back of the trailer and saw a rear light turned on. At this point, the officers were cognizant that an 11-year-old child was missing and reportedly abducted by defendant who had a lengthy criminal record which included multiple charges including weapons and sex offenses involving minors. They knew he was living with the victim under an assumed name in the very trailer they sought to enter. We do not perceive this situation as routine. Indeed, it is clear that immediate action was imperative. Faced with these exigent circumstances, the police were under a duty to enter the trailer to ensure the safety of the child (see People v. Adams, 53 N.Y.2d 1, 10-11, 439 N.Y.S.2d 877, 422 N.E.2d 537). Moreover, beyond the exigencies of the situation, the arresting officers acted pursuant to what they thought was a validly executed arrest warrant. Application of the exclusionary rule in this instance of reasonable, good faith reliance by the police would not serve the salutary purpose of the rule in deterring police misconduct (id. at 9-10, 439 N.Y.S.2d 877, 422 N.E.2d 537). For these reasons, we find that the entry into defendant's trailer was proper.

We further find that the ensuing search conducted by the police was lawful as incidental to a valid arrest (Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685). The record discloses that defendant was reaching toward a dresser drawer when confronted by Investigator Gardner, who ordered defendant away from the dresser and removed a gun. Defendant's contention that the drawer was beyond his reach merely presented a credibility question for resolution by the suppression court. Clearly, the officer did not conduct an unwarranted general search of the trailer, but only one necessitated by the circumstances of the arrest (United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538). Thus, the court properly refused to suppress the gun. We note, finally, that defendant's reliance on United States v. Reed, 2 Cir., 572 F.2d 412, cert. den. 439 U.S. 913, 99 S.Ct. 283, 58 L.Ed.2d 259 to assert the unlawfulness of the warrantless arrest because of the presence of FBI agents notwithstanding a finding of probable cause, is misplaced. The arrest was conducted simultaneously by members of the New York State Police, NYCMPS, and FBI, whereas the Reed case involved an investigation and arrest for violations of Federal law conducted solely by Federal agents. The peripheral involvement by Federal agents here factually distinguishes this case from United States v. Reed (supra ).

Defendant next argues that the evidence was insufficient as a matter of law to support either the kidnapping or sodomy convictions. In our view, the evidence clearly establishes that Wayne Sperry was "restrained" within the meaning of the relevant kidnapping statutes (Penal Law, §§ 135.00, 135.20). The Penal Law definition of "restrain" includes movement or confinement by "any means whatever, including acquiescence of the victim, if he is a child less than sixteen years old" (Penal Law, § 135.00, subd. 1, par. ). Defendant misconstrues this term in arguing that Wayne voluntarily accompanied him to Modena and was...