People v Chumbley

[*1] People v Chumbley 2005 NY Slip Op 51871(U) [10 Misc 3d 1051(A)] Decided on November 18, 2005 County Court, Westchester County Zambelli, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 18, 2005
County Court, Westchester County

The People of the State of New York

against

Helen Chumbley, Defendant.



05-0139

Barbara G. Zambelli, J.

The defendant stands accused of, inter alia, the Christmas Eve murder of her lesbian life partner. By decision and order dated May 19, 2005, the Honorable Lester Adler granted the defendant's motion to suppress solely to the extent of ordering a pre-trial hearing to determine the legality of the entry into defendant's home, the admissibility of defendant's statements, and whether there was an unlawful search tainting the recovery of evidence after the issuance of the search warrant. Police Officer Bruce Grossman, Detective James McCabe, Detective Sergeant Joseph Pietropaola, and Police Officer Victor Preni of the Yonkers Police Department provided testimony for the People. The defendant did not offer testimony on her own behalf.

FINDINGS OF FACT

The credible testimony adduced at the hearing established that on December 24, 2004, at approximately 11:19 p.m., the Yonkers Police Department received a phone call from Tennessee alerting them that there had been a shooting at 30 Sunlight Hill in the City of Yonkers. The caller, a Woody Camp, told the operator that the defendant had just called her relative to tell her that she had just shot her roommate. When pressed by the operator, Mr. Camp admitted that the defendant and victim shared more than a simple roommate relationship.

Police Officer Grossman overheard a police transmission regarding the possible shooting and [*2]responded to the scene. Upon arrival, he observed a single family residence with a fence in the rear of the backyard. At least two other police cars and 4 to 6 other officers were at the location. The home's front screen door was closed but the inner door was open. When Grossman knocked loudly and announced "Yonkers Police" several times for almost a minute, he received no response. He then went around the house to cover the rear exit. Meanwhile, the other officers entered the house through the front.

Grossman used a flashlight because the side and rear yards were very dark. At the rear door, he noticed that the outer screen door was closed and the inner door was open. After he heard his fellow officers' voices from inside the house, he entered the rear door and found the defendant lying in a fetal position on the living room floor. He asked her if she was okay, and she responded, "Yes." He asked her if anyone was shot and she immediately answered, "Yes, in the backyard." Upon entering the backyard to investigate, the officers found the decedent, Barbara Schollar, lying face up on her side with a gunshot wound to her neck. Grossman touched her left hand and found it to be cold.

The officers returned to the living room and asked the defendant if there was anyone else in the house, to which she answered, "No." When Grossman asked her where the gun was, she said, "down the hall to the right," and made a motion with her head in that direction. Grossman looked in the rear room and saw a black handgun on a small wooden table. He then went back to the living room and advised a superior officer about the presence of a weapon.

The defendant was handcuffed and placed in the rear of Grossman's patrol car. Her eyes were bloodshot. She was sluggish but walked on her own without assistance. In response to questioning by Detective McCabe, she gave her name, date of birth and the name of the person in the backyard. Although there was an odor of alcohol on her breath, she did not appear intoxicated. Approximately 45 to 55 minutes later, the patrol car left the scene for the detective division.

In the detective division, Grossman brought the defendant into the interview room, and she was uncuffed. At 1:05 a.m., a gun shot residue test was taken of her hands by Police Officer Capuano. When Detective McCabe returned to the interview room, he noticed that the defendant's eyes were red and she had been crying. She was permitted to use the bathroom on her own without escort. When asked if she wanted something to eat or drink, she asked for and was given a glass of water. Detective McCabe advised her of each of her Miranda rights from the card in evidence as People's Exhibit 33. She was asked the waiver questions and responded "Yes" to them all. Detective McCabe asked her to sign and date the card, to which she answered that she needed her glasses. When Detective McCabe asked her again, she indicated that she could manage without them. She held the card up to her face, the detective asked her if she understood, and she signed her name and dated the card "12/25/04 1:20 a.m". She thereafter made the statements contained in the People's CPL 710.30 Notice.

Detective McCabe asked her to give a formal written statement. At first, she told him that she thought she needed an attorney. She then unequivocally stated that she needed an attorney. [*3]Detective McCabe told her he wasn't going to ask her any more questions, and all questioning stopped. She immediately apologized to him because it was his Christmas too and she said, "I did a bad thing".

Meanwhile, Detective Sergeant Pietropaola of the Crime Scene Investigation Unit arrived at the crime scene between approximately 12 and 12:30 a.m. on Christmas Day; he did a walk through of the house and backyard. He observed the firearm on the table in the back bedroom/den area. He called Police Officers Preni and Capuano for a video of the scene and photos. According to Police Officer Preni, he arrived with a video camera at 12:20 a.m., did a walk through and videotaped the house and yard at approximately 1 a.m. Also, after the Medical Examiner arrived, Preni recovered the victim's glasses from the ground next to her body. Pietropaola went back to the detective division to obtain a search warrant. The warrant was brought to City Court Judge Doran's home and signed by the Judge. Sergeant Pietropaola called the Crime Scene Investigation Unit officers at the scene at 3:15 a.m. to advise them that the warrant had been approved and to go ahead with the search. Judge Doran marked the time as 3:25 a.m. No physical evidence was seized or recovered until after the issuance of the warrant.

CONCLUSIONS OF LAW

"Courts have long recognized that the Fourth Amendment is not violated every time police enter a private premises without a warrant" (People v. Molnar, 98 NY2d 328, 331). "The touchstone of the Fourth Amendment is reasonableness" (United States v. Knights, 534 U.S. 112, 118). Its warrant requirement is not a barrier to a police officer seeking to help someone in immediate danger (see People v. Mitchell, 39 NY2d 173, 177). There are three perquisites to this emergency exception. The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance; the search must not be primarily motivated by intent to arrest and seize evidence; and there must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched (see People v. Molnar, supra, 98 NY2d at 332).

In this case, entrance into the defendant's home was the result of a reasonably perceived emergency excusing the warrant requirement. The police had specific information that a shooting had occurred in the house earlier that day. When they responded to the scene, they found the house open and nobody answered after they announced their presence. In a case such as this, it was perfectly reasonable for the police to enter the home for the intended purpose of assisting the victim (see e.g. People v. Dixon, 281 AD2d 430).

Once the police enter a home under exigent circumstances, they are permitted to make a warrantless search of the area to see if there are other victims (see Mincey v. Arizona, 437 US 385, 392). Even after the emergency has abated, the police are permitted to maintain a presence to secure the area for a reasonable period of time while a warrant is obtained (see Mincey v. Arizona, 437 US [*4]385, 393; People v. George, 7 AD3d 810; People v. Dancy, 84 AD2d 764; People v. Neulist, 43 AD2d 150). Furthermore, as is the case with any lawful search, evidence in plain view can be properly seized by the police (see Mincey v. Arizona, supra, at 393; People v. Jackson, 41 NY2d 146, 150; People v. Carl, 19 AD3d 505).

In this case, approximately four hours passed between the emergency entry into the defendant's home and the signing of the warrant. Under these circumstances, where entry occurred during the last hour of Christmas Eve, requiring the police to obtain a warrant during the early morning hours of Christmas Day, clearly the police were present for only a reasonable period of time before the execution of the warrant (see People v. George, supra; Cf. Mincey v. Arizona, supra). Consequently, since the victim's glasses and the gun were in plain view, they could have been recovered in the absence of a warrant at anytime (see People v. Reilly, 190 AD2d 695, 696). Similarly, the suppression of the video taken of the defendant's home is not required as it simply recorded the officer's observations of the home's layout and objects in plain view (see People v. Maltese, 149 AD2d 626; People v. Nelson, 144 AD2d 714). The videotaping of the murder scene did not constitute an additional invasion of the defendant's privacy because the police were already lawfully in her home (see People v. Spencer, 272 AD2d 682, 683).

The defendant also moves to suppress the gun shot residue taken from her hands. However, the credible testimony established that the residue was removed from the defendant's person only after the police had probable cause to arrest her (see People v. Chavis, 7 AD3d 537). "[G]unshot residue may be easily removed or destroyed through normal activities such as wringing hands, putting hands in pockets, or shaking hands ... [and] may be easily destroyed by a person wishing to destroy evidence by such action as hand washing" (see State v. Coplen, 530 SE2d 313, 320 [N.C. App. 2000]). It was reasonable for the police to expect that the defendant might seek to destroy such evidence, and for them to conduct a limited search to prevent the residue's destruction (see Cupp v.Murphy, 412 US 291, 295). Accordingly, the residue need not be suppressed, as it was properly recovered incident to a lawful arrest.

The testimony clearly demonstrated that the defendant received and acknowledged the Miranda warnings and knowingly and voluntarily waived her rights before making her initial statements (see People v. Schompert, 19 NY2d 300; People v. Bartlett, 215 AD2d 489; People v. Griffin, 186 AD2d 820). No evidence was adduced indicating that she was so intoxicated that she was unable to comprehend the meaning of her waiver of rights or of her inculpatory statements (see People v. Jordan, 216 AD2d 489; People v. Angel, 185 AD2d 356; People v. Butler, 175 AD2d 252). Rather, she walked without assistance, understood the questions posed to her, and gave appropriate responses. She even made certain that she could read the Miranda waiver card without her glasses before she signed it, and had the lucidity to request the assistance of counsel when she was asked to give a written statement.

Finally, the defendant's apology to Detective McCabe, made after she asked for counsel, was not in response to an inquiry, and the defendant was not provoked, encouraged, or induced to speak. This statement was a spontaneous utterance and not the product of interrogation and, as such, is [*5]admissible (see People v. Rivers, 56 NY2d 476, 479; People v. Farrell, 13 AD3d 644).

Accordingly, for the foregoing reasons, the motion to suppress is in all respects denied.

Dated:White Plains, New York

November 18, 2005

__/s/ Barbara G. Zambelli ______

BARBARA GUNTHER ZAMBELLI

COUNTY COURT JUDGE

Hon. Jeanine Pirro

District Attorney, Westchester County

111 Dr. Martin Luther King, Jr. Blvd.

White Plains, New York 10601

Attn: Kerry Neary, Esq.

Assistant District Attorney

Hochheiser & Hochheiser, LLP

270 Madison Avenue, Suite 1203

New York, New York 10016

Attn: Lawrence Hochheiser, Esq.