People v Remy

[*1] People v Remy 2009 NY Slip Op 51670(U) [24 Misc 3d 1229(A)] Decided on July 6, 2009 Supreme Court, Kings County Cyrulnik, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 6, 2009
Supreme Court, Kings County

The People of the State of New York

against

Thermine Remy, Defendant.



04642/07



The People were represented by:

Assistant District Attorney Wayne Alleyne

The defendant was represented by:

Douglas G. Rankin, Esq.

Miriam Cyrulnik, J.

The defendant is charged with Criminal Possession of a Weapon in the Second Degree and other related charges. This Court conducted a combined Huntley/Dunaway hearing on June 30, 2009. The People called one witness, Police Officer Michael Simmons. The defendant called no witnesses. The parties made oral arguments and submitted brief memoranda to the court. The court will now rule on the admissibility of the proffered statements, and the issue of probable cause to arrest the defendant.[FN1]

I) HUNTLEY PORTION OF THE HEARING

The People seek to offer the following statements elicited at the hearing:

Defendant stated that a gun was in the blue Polo box in his closet, after being asked

by Police Officer Simmons, in sum and substance, "Is there anything I need to know about, anything I should be concerned about?"

Defendant indicated that his address was 1119 East 99th Street on the ground floor.

Defendant identified a set of keys found on a counter top as his own, and asked to [*2]

take the keys with him.

Police Officer Michael Simmons testified at the hearing on behalf of the People. After having had an opportunity to observe and evaluate the testimony of the sole witness at the hearing, and finding him to be credible, the court issues the following findings of fact and conclusions of law.

Findings of Fact

The Defendant was in handcuffs, seated on the bed, when first observed by Police Officer Simmons.

In response to Defense Counsel's question on cross-examination, whether the Defendant was free to leave when he was there in cuffs, Officer Simmons answered, "No, he wasn't" (p. 26). When asked if the Defendant was under arrest at that point, Officer Simmons answered that "he was being detained."

Additionally, Officer Simmons could not recall any specific time at which he issued Miranda warnings to the defendant. He said he "believed he did," based on the police department's general "protocol" regarding the issuance of Miranda warnings. The People did not introduce any evidence to establish if, or when, Miranda warnings were ever given.

Conclusions of Law

The court concludes that the defendant was unquestionably in police custody when the three statements were made. Statement No.1

Defendant stated that a gun was in the blue Polo box in his closet, after being asked by Police Officer Simmons, in sum and substance, "Is there anything I need to know about, anything I should be concerned about?" On cross-examination, the officer stated that he did so because, in executing "...a search warrant for drugs and guns, you stick your hands somewhere, a gun is cocked and that could be the end of you, the end of your partner next to you. So, anything I should be concerned about relevant in executing this search warrant. That being, of course, a gun" (p. 28).

The Court has weighed several factors surrounding the Defendant's statement, including:

The exigency and potential volatility of the situation

When Police Officer Simmons arrived, the defendant was already in handcuffs in the bedroom of his apartment. Emergency Service Unit officers had already arrived and secured the scene, although the People did not elicit much information in that regard. This was brought out on cross-examination. Since the defendant was in handcuffs and the area had already been secured, neither officer safety nor the greater public safety were in issue. This was not a situation that needed to be clarified before the officers could take further action.

In this regard, the court is guided by cases such as People v. O'Connor, 6 AD3d 738, 739 (3rd Dept 2004), lv denied 3 NY3d 639 (2004)(because the "...Defendant was separated from the bag containing the guns and placed in handcuffs, ...officer safety was not at issue"); and People v. Strickland, 169 AD2d 9 (3rd Dept 1991)(Defendant, already handcuffed, was cooperative during arrest, and the arrest took place in a rural residential area which had been secured and searched; no exigency or public safety crisis was found).

Other cases do present fact patterns that could justify applying the public safety [*3]exception. They include People v. Melvin, 188 AD2d 555 (2d Dept 1992), lv denied 81 NY2d 889 (1993)(on approaching the location, the police officer observed many people, including children, in the immediate vicinity. He saw a woman with a bullet wound to her chest, and observed the defendant nearby, saying "she made me do it...." The appellate court agreed with the hearing court that safety concerns posed by the "...volatile situation ... called for immediate action," and approved the officer's questioning the defendant about the location of the gun). In People v. Sanchez, 255 AD2d 614 (3rd Dept 1998), lv denied 92 NY2d 1053 (1999), reports of "shots fired," coupled with the presence of multiple civilians, including an infant, justified pre-Miranda questioning to locate the gun and "...to quell an escalating and potentially volatile situation."

Those types of factors are not present here.

The nature of the allegations and charges against the Defendant

Although the warrant application contained a reference to the defendant having been observed with a firearm, there was no allegation that the defendant had used a weapon in this case. Nor were any victims present (i.e. shooting or stabbing victims), which would indicate the use or presence of weapons. Therefore, safety concerns were again not in issue.

By contrast, for example, in People v. Johnson, 46 AD3d 276, 2007 NY Slip Op 9670 (1st Dept 2007), lv denied 10 NY3d 865 (2008), the court found that detectives were justified in questioning a defendant about the presence of a gun in her apartment, when a gun was allegedly recently used in the robbery they were investigating and the defendant was moving about the apartment unsecured while dressing). In People v. Melvin, discussed above, the presence of a shooting victim at the scene gave rise to additional security concerns that a weapon was in the vicinity.

Again, those factors are not present here.

The location of the Defendant at the time the statement was made

The defendant was being held within the confines of a secured apartment, and not in a public area. This was not an emergency situation in which public safety was potentially threatened.

By contrast, in People v. Oquendo, 252 AD2d 312, 316 (1st Dept 1999), lv denied 92 NY2d 901 (1999), where a loaded gun was missing somewhere in a snow-covered 3 block public area and could not be found without the defendant's help, the threat to public safety inherent in such an emergency was deemed paramount. The appellate court recognized that the police had "no alterative" but to question the Defendant before "Mirandizing" him.

The defendant here was clearly in police custody when he was questioned. Despite the officer's assertion that his question reflected only a safety concern, this court finds that the circumstances of defendant's detention were not those that justified a departure from the required practice of issuing Miranda warnings to a defendant before custodial interrogation.

Accordingly, that portion of the Defendant's motion is granted, and the statement is suppressed.

Statement #2

Defendant concedes that the second statement, indicating that his address was 1119 East [*4]99th Street on the ground floor, was pedigree information. Accordingly, that portion of the Defendant's motion to suppress is denied.

Statement #3

The third statement pertains to the defendant identifying a set of keys found on a counter top as his own. The officer's uncontradicted testimony was that as the defendant was being escorted from the location, he asked to take the keys with him.

Defendant first seeks preclusion of this statement for lack of CPL §710.30(1)(a) notice. While it is undisputed that notice of this statement was given at arraignment, the Voluntary Disclosure Form subsequently served and filed by the People omits it. Defendant argues that this omission is tantamount to a withdrawal of statement notice. He cites two cases, People v. Hines, 200 AD2d 634 (2d Dept 1994), and People v. Boughton, 70 NY2d 854 (1987), in support of that argument. However, as the People correctly point out, Hines and Boughton are readily distinguishable, in that they both involved affirmative, though erroneous, withdrawals of statement notice.

The Defendant, represented throughout the pendency of this case by the same attorney, received timely notice of this statement pursuant to CPL §710.30(1)(a). There was no specific withdrawal of that notice by the People. Therefore defendant's application based on lack of notice is denied.

In any event, that statement was spontaneously offered by the defendant. It was not elicited in response to police questioning.

Accordingly, that portion of the Defendant's motion to suppress is denied.

II) DUNAWAY PORTION OF THE HEARING

Finally, the items recovered at the defendant's home pursuant to a valid and properly executed search warrant provided sufficient probable cause to arrest the Defendant. Accordingly, that portion of the Defendant's motion to suppress is denied.

This opinion constitutes the decision and order of the Court.

Dated: July 6, 2009

Brooklyn, New York

_____________________________

Miriam Cyrulnik

Justice of the Supreme Court Footnotes

Footnote 1: The Court originally ruled from the bench on July 6, 2009. This decision followed after that date.