People v McLeod

[*1] People v McLeod 2004 NY Slip Op 51725(U) Decided on December 23, 2004 Supreme Court, Kings County Demarest, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 23, 2004
Supreme Court, Kings County

THE PEOPLE OF THE STATE OF NEW YORK,

against

BURNELL MCLEOD, Defendant.



526/03

Carolyn E. Demarest, J.

Defendant moves to suppress oral, written and videotaped statements made in Florida to New York City detectives, claiming that such statements were obtained in violation of his constitutional rights, that the police did not have probable cause to arrest him and that he was arrested without a warrant in his home. He further moves to suppress in-court identifications by witnesses who viewed photo arrays, on the ground that the identifications were unduly suggestive.

Additional issues raised by Defendant in his omnibus motion were decided by this Court on April 19, 2004, including his claim that his right to be informed of the right to have the Guyanese Consulate notified of his arrest under the Vienna Convention and his right to have the police notify the Consulate under the Bilateral Treaty between the United States and the United Kingdom had been violated. This Court ruled that to the extent that the Vienna Convention confers individual rights, suppression is not an appropriate remedy for a violation of such rights. With respect to the Bilateral Treaty, the Court noted that it is presumed to have no legal effect since the Republic of Guyana became independent from the United Kingdom in 1966. At argument following the hearing Defendant reiterated his contention that his rights under the Vienna Convention and the Bi-Lateral Treaty had been violated, although no evidence was offered with regard to these issues. In addition, the Court previously denied Defendant's motion to strike and seal his Grand Jury testimony or for dismissal of the indictment on the ground that he had received ineffective assistance of counsel. The Court adheres to its original decision with respect to these issues.

A Wade, Huntley, Payton and Dunaway hearing was held May 3, 4 and 5, October 4, and November 29, 2004. The People presented testimony from Detective Sergeant Christopher Devaney and Detective Peter McMahon of the New York City Police Department, Deputy Detective William Kenneth Derrett of the Orange County Sheriff's Office in Florida and Assistant District Attorney Timothy Gough of the Kings County District Attorney's Office. Nigel Lawrence testified for the defense. The Court finds the testimony credible.

FINDING OF FACTS

On June 14, 2002, Terrance Gary Foote was shot and killed on Coleman Street and Avenue V in Brooklyn. On the same date, a burglary occurred at Mr. Foote's place of business at 2123 Church Avenue in Brooklyn, during which tattoo equipment and a cell phone were taken. Detective Devaney was assigned to investigate the homicide, assisted by Detective McMahon.

From June 14, 2002, to July 28, 2002, Devaney and McMahon interviewed co-workers, friends and relatives of Mr. Foote, and consulted with the detectives investigating the burglary of Mr. Foote's business. In the course of the investigation, the name Burnell McLeod was mentioned as someone who had worked for Mr. Foote as a tattoo artist and had left the employment on bad terms in connection with a dispute over money. Mr. McLeod had reportedly lived in Mr. Foote's mother's house for a time. A tattoo artist named Nigel Goodluck who worked at Mr. Foote's place of business was interviewed and stated that the missing items from the shop included tattoo equipment, tattoo guns and needles, tattoo samples from the walls and set books. Investigation and monitoring of the stolen cell phone revealed that phone calls were being made to relatives of Burnell McLeod. Detective Devaney learned from Rondell McLeod, Burnell McLeod's brother, that Defendant had left tattoo equipment at Rondell McLeod's home on the morning of June 14, 2002. Rondell McLeod released the equipment to the police and they vouchered it and had it tested for latent fingerprints. The test results revealed Burnell McLeod's fingerprints on the equipment.

On July 9, 2002, Detective Devaney interviewed Cecilia Amorosa. Ms. Amorosa told Detective Devaney that on June 14, 2002, she was in a car with her sister-in-law on Kimball Street between Avenue T and Avenue U when she heard yelling and saw a male chasing another person on Kimball Street between Avenue U and Avenue V. She drove around the block and as she drove on Coleman Street toward Avenue V she noticed a large black male beating another black male. She yelled at him to stop. He stopped but did not turn around, so she did not see his face. The victim looked at her and asked for help. Her sister-in-law then stated to her that the large male had a gun in his hand. She continued driving in order to seek help and observed that the beating resumed. She saw a police car and showed the officers where the victim was. According to Devaney's spiral notebook, he showed Ms. Amorosa three photographs during that interview: Nigel, Burnell and Leroy, and all were negative. Detective Devaney testified that the mark in his spiral notebook that appears to be an ampersand after the name Burnell is actually a check mark indicating that the photo of Burnell was not shown to Ms. Amorosa. (Defendant's Exhibit A) His typed complaint-follow up form (dated 7/9/02 at the top but containing the date of interview as 7/10/02) states that Ms. Amorosa was shown photo arrays of Nigel Goodluck and Leroy Thomas [*2]and she could not pick them out as the male she saw assaulting the victim. (People's Exhibit 7)

On July 28, 2002, Detective Devaney interviewed Cecilio Richards, a livery cab driver. Mr. Richards stated that on the morning of the homicide, he received several phone calls between 7 a.m. and 8 a.m. to pick up a man at 4019 Avenue K in Brooklyn for a ride to Kennedy Airport. Devaney had previously ascertained that Defendant's brother, Rondell McLeod, lived at 4019 Avenue K. Mr. Richards told Detective Devaney that he also picked up the customer's girlfriend at that address and drove her to another address. Mr. Richards identified a single black and white photograph of Defendant as the man he had picked up that morning. (People's Exhibit 6) Mr. Richards stated that he had driven the customer about three times previously but did not know his name. Mr. Richards further stated that he did not drive the man to the airport but dropped him at 212 Sullivan Place to pick up money for the trip.

On July 31st, Detective Devaney received a telephone call from a man who identified himself as Burnell McLeod. He stated that he was in Florida and that he had gotten Devaney's number from his aunt at 212 Sullivan Place who had told him Devaney was looking to speak to him. Detective Devaney told him that he was investigating the homicide of Terrance Foote and if Mr. McLeod was coming back to Brooklyn, he would like him to stop by the 63rd Precinct. Mr. McLeod told him that he would be returning to Brooklyn August 6th and would stop in at that time.

On August 1, 2002, at 4:30 p.m., Detective Devaney showed a photo array containing Burnell McLeod's photograph to Cecilia Amorosa. According to Devaney's spiral notebook, Ms. Amorosa told him if she had to pick anyone it would be No.2, which was Burnell McLeod, but she was not 100% sure and she could not say in court that she was 100% sure (Defendant's Exhibit B). However, according to Devaney's Complaint - Follow Up (People's Exhibit 8) and his testimony, Ms. Amorosa stated that she was 95% sure that photograph #2 was the man she observed assaulting another male on Coleman Avenue and Avenue V on June 14, 2002.

On August 3, 2002, Detective Devaney received another phone call from Burnell McLeod. Mr. McLeod told the Detective that he had a new job and wouldn't be coming back to Brooklyn until August 12th. He told Detective Devaney that he was in South Daytona. There was no discussion of the homicide investigation.

On December 4, 2002, Detective Devaney and Detective McMahon [*3]interviewed Franz Joseph, who resided at 645 Ocean Avenue in Brooklyn. Mr. Joseph's name had developed through interviews with Rondell McLeod, as having some involvement in the case. Rondell McLeod had told the detectives that his brother Burnell had left some keys with a man named Bishop and was trying to locate him to get the keys back. Bishop was Franz Joseph. The investigation of the cell phone usage had also revealed that calls were being made from the stolen cell phone to 645 Ocean Avenue. Mr. Joseph made statements to Devaney and McMahon admitting his involvement in the death of Gary Foote, and implicating Burnell McLeod. Mr. Joseph stated that Burnell McLeod wanted to steal the tattoo equipment from Mr. Foote's shop. He stated that they saw Mr. Foote in the street on June 14th, approached him and asked for a ride and got in Mr. Foote's van. In the van, Mr. McLeod pulled out a gun and told Foote to keep driving. In the area of Kings Plaza, they robbed Mr. Foote of his credit card and keys. A fight ensued. Mr. Foote kicked out the window of the van and jumped out. Burnell McLeod chased him. Mr. Joseph stated that he heard a gun shot and he ran and called his girlfriend to pick him up. During the investigation, Devaney had observed that the rear window on the left side of Mr. Foote's van had been smashed out. The office of the Brooklyn District Attorney took a videotape statement from Franz Joseph at which Devaney and McMahon were present.

At about 4:20 p.m. on December 4, 2002, Devaney and McMahon showed Mr. Joseph the same photo array that had been shown to Cecilia Amorosa . Mr. Joseph immediately picked out #2 as Burnell McLeod. Mr. Joseph was placed under arrest and charged with murder and robbery.

On January 14th, 2003, Detective Devaney and Detective McMahon went to South Daytona, Florida to look for Burnell McLeod at his uncle's home. Mr. McLeod was not in South Daytona. The two detectives then went to Orlando, Florida, to look for Mr. McLeod at an address they had obtained from an ex-girlfriend of Mr. McLeod's, who had received a letter from him with the Orlando address as the return address. The address was 2001 Buchanan Bay Circle, Number 103. The occupant at that address was Nigel Lawrence. Detective Devaney and Detective McMahon called the Florida Department of Law Enforcement and then went to their office. Two agents, Lanfaciek and Massi, were assigned to work with the New York City detectives. Between 12:30 and 1:00 p.m., the four officers traveled to the address at Buchanan Bay Circle in two cars, Devaney with Agent Massi and McMahon with Lanfaciek. They communicated with each other by means of a point to point radio. Six or seven uniformed members of the Orange County Sheriff's Department also accompanied [*4]the officers to the location. Buchanan Bay Circle is a housing complex of two-story duplexes attached to each other in groups and numbered separately. There are concrete pathways leading to the doors of the units from the parking lot. There is a large concrete slab outside the front door of each unit. There is grass between the pathways leading to each unit. There are no fences. The parking lot, pathways and slabs in front of the doors are open to the public. McMahon and Lanfaciek parked in view of Unit 103. The officers observed a red Dodge Neon registered to Burnell McLeod and a white Lincoln Continental registered to Nigel Lawrence parked near the unit.

Devaney and Massi remained near the exit to the complex. At about 12:50 p.m. they observed an individual get into the white Lincoln. The Lincoln drove away and Devaney and Massi followed it. They pulled the car over at a gas station, saw that the driver was not McLeod, ascertained Mr. Lawrence's identity and that he lived at 2001 Buchanan Bay Circle, Number 103, and asked him if Burnell McLeod was there. Devaney testified that Mr. Lawrence confirmed that McLeod was there and that he asked the police to get him out. Mr. Lawrence testified that he did not make this statement. Devaney and Massi remained with Mr. Lawrence until they radioed to McMahon and Lanfaciek that Burnell McLeod was in the apartment.

McMahon and Lanfaciek had observed a male and a female get into the Lincoln and drive away at about 12:50 p.m., the male driving. About ten minutes later, they received a radio communication from Devaney that it was Nigel Lawrence in the Lincoln and that Lawrence had said that Burnell McLeod was inside of his home, Unit 103. Agent Lanfaciek notified the Orange County Sheriff's Department officers that McMahon and Lanfaciek were going to knock on the door and that the Orange County deputies should get into position to observe the front and rear exits of the unit. The deputies took up positions along the building line but not in sight of someone in the doorway. McMahon walked up and knocked on the door. His gun was in his hand, held behind his back. Agent Lanfaciek was behind him. A male voice asked through the door who was there. McMahon asked if Nigel was home. The male said no and McMahon asked if he could open the door so McMahon could speak to him. When the front door opened, McMahon saw that it was Burnell McLeod. McMahon asked him his name. Mr. McLeod gave his name and said that Nigel was his cousin and that he was not at home. Detective McMahon asked Defendant to step outside so they could speak. When Defendant stepped out, McMahon grabbed hold of him, and some of the Orange County Sheriff's Department officers rushed up and [*5]handcuffed him. Defendant was walked to the curb and seated. Detective McMahon identified himself to Defendant and told him he was investigating the death of Gary Foote. Defendant stated that he had heard about it, but that he was not there. Detective McMahon told him that they would be going to the Florida Department of Law Enforcement so Defendant could be interviewed. Defendant was not wearing shoes, so Detective McMahon walked him back up to the apartment. Defendant pointed to a pair of sneakers on the stairs and to a shirt on the couch and these items were obtained for Defendant.

By 1:30 p.m. on January 14, 2003, Defendant had been placed into an interview room at the Florida Department of Law Enforcement. Detective Devaney and Detective McMahon gave him his Miranda warnings at 1:55 p.m. Following the administration of the Miranda warnings, Defendant indicated he would be willing to speak to the detectives. Defendant and the detectives spoke for about an hour. During that conversation, Defendant said he had heard about the homicide and that he had nothing to do with it. The detectives then told Defendant about what they had discovered during the investigation with respect to cell phone records and their interviews with people in Brooklyn. At about 4:45 p.m., Defendant agreed to write out in his own handwriting his version of the events leading to the death of Gary Foote on June 14, 2002. (People's Exhibit 3, deemed marked)

According to Defendant's written statement, he was preparing to go to Florida when he met a friend he had known since he was little, called Bishop. Bishop suggested they rob Mr. Foote's shop. Defendant went along reluctantly because Bishop said if he didn't go along, Bishop would blame it on him. They got into Gary's van with Gary. Bishop had the gun. They took Gary's credit card. Bishop pulled over. Gary went into the back of the van and smashed the window and jumped out and started running. Bishop took off after him without a gun in his hand. Defendant couldn't find the gun. He ran out of the van and was looking for Bishop when he heard a loud sound. He ran to see if Gary was okay. When he found Gary, Gary was bleeding. He tried to help him get up when a female in a car began yelling, "Don't hit him." The woman said she was going to get the police. Defendant left and picked up his tattoo equipment from Bishop's brother. On his way home he saw Bishop by Gary's shop and Bishop said he had the keys to the shop. A cab pulled up and Bishop placed equipment from the store into the cab. Bishop gave some equipment to Defendant which he left at his brother's house.

After Defendant finished writing out the statement at approximately 6:00 [*6]p.m., he used the bathroom and the detectives bought food from Wendy's for all of them. At 7:15 p.m., Defendant was asked if he would be willing to make a video statement and Defendant responded that he would. The videotape statement was taken between 7:15 p.m. and 7:34 p.m. At about 7:55 p.m., Detective McMahon contacted the office of the Kings County District Attorney in Brooklyn to request that a complaint and warrant be issued charging Burnell McLeod with the death of Gary Foote on June 14, 2002. No previous requests for a warrant had been made in the case and no warrants had issued in either New York or Florida.

At approximately 11:30 p.m. on January 14, 2003, a complaint and warrant were faxed from Brooklyn to the Florida Department of Law Enforcement in Orlando. (People's Exhibit 5) Defendant was brought to the Orange County Sheriff's Department for lodging.

On January 15, 2003, Deputy Ken Derrett of the Orange County Sheriff's Office, a detective with the Fugitive Extradition Jail Warrants section, spoke with Defendant at the Orange County Jail. He was tasked with asking Defendant if he wanted to sign a waiver of extradition. Deputy Derrett explained to Defendant that he had been arrested as a fugitive from justice on a warrant in the State of New York charging him with murder with a firearm. He explained that the warrant was good in New York but not in Florida and that Florida could hold him until he could be turned over to New York. Deputy Derrett explained Defendant's options to him by reading to him from a form that fully explained the rights of an accused to waive or contest extradition. The form includes language explaining that if a defendant chooses to contest extradition, the judge may appoint an attorney to help him do so. Deputy Derrett handed Defendant a Waiver of Extradition form (People's Exhibit 11) and turned it around so Defendant could read it simultaneously as the deputy read it aloud. Defendant then signed the form and Deputy Derrett signed it and dated it January 15, 2003.

On January 16, 2003, the Waiver of Extradition form which Defendant had signed was brought to Judge Thomas Mihok of the Circuit Court of the Ninth Judicial Circuit in Orange County. Defendant appeared via video conference and waived extradition on the record. The Judge ordered the Orange County Department of Corrections to surrender Defendant to duly authorized agents of the demanding state. Detectives Devaney and McMahon then picked Defendant up and brought him back to the 63rd Precinct in Brooklyn and processed him for the murder of Gary Foote.

CONCLUSIONS OF LAW[*7]

IDENTIFICATIONS

Defendant argues that the identification by Cecilia Amorosa must be suppressed for several reasons. First, Detective Devaney's testimony and his typed Complaint-Follow Up are inconsistent with the notes in his spiral notebook apparently reflecting that he showed a photo of Defendant to Ms. Amorosa on July 9, 2002. This issue is further confused by the Grand Jury testimony of Ms. Amorosa and of Detective Devaney indicating that Ms. Amorosa was shown a photo array on July 9th, while Detective Devaney's Complaint-Follow Up indicates that she was shown the array on August 1st. ADA Timothy Gough testified at the hearing that he misspoke in both instances at the Grand Jury in directing the witnesses' attention to July 9th, and that the date the photo array was shown was actually August 1st. There is a further inconsistency in Detective Devaney's testimony with respect to Ms. Amorosa's identification on August 1st, that is, his handwritten notes indicate that she said she was not one hundred percent sure that the photo she selected was the man she had seen on the night of June 14, 2002. The detective's typed Complaint-Follow Up and his testimony state that Ms. Amorosa said she was ninety-five percent sure. Defendant contends that these inconsistencies, together with the fact that Ms. Amorosa told the police that she did not see the perpetrator's face because he intentionally did not turn around, make the reliability of the identification questionable.

With respect to the identification of Defendant by Cecilio Richards, Defendant argues that showing the witness a single photo was suggestive and that insufficient evidence was adduced by the People to support a confirmatory identification by a witness with prior familiarity with Defendant. Defendant further contends that the identification of Defendant in the photo array by Franz Joseph must be suppressed because he is not believable.

At a hearing to determine the admissibility of a courtroom identification, the prosecution has the initial burden of going forward to establish the reasonableness of police conduct and the lack of undue suggestiveness in a police arranged identification procedure, while the defendant bears the ultimate burden of proving that the procedure was unduly suggestive. People v. Chipp, 75 NY2d 327(1990). It is incumbent upon the prosecution to establish that an in-court identification procedure is not the product of an improper pre-trial identification. People v. Rahming, 26 NY2d 411(1970); Simmons v. United States, 390 US 377(1968).

Where suggestiveness is shown, it is the prosecutor's burden to demonstrate the existence of an independent source by clear and convincing evidence. People v. [*8]Chipp, supra.

In determining whether a photographic array was "unduly suggestive" the hearing court should consider whether there was any substantial likelihood that the defendant would be singled out for identification. People v Chipp, supra, 75 NY2d at 336. Where the defendant is known to the witness before the crime, there is virtually no possibility of a misidentification resulting from a pre-trial viewing. People v. Gissendanner, 48 NY2d 543(1979). Such a viewing is merely confirmatory. Id. In this case, it was clear from the investigation that Franz Joseph knew Defendant prior to the commission of the crime, thus there was no possibility of misidentification.

Undue suggestiveness may result from the showing of a single photograph to a witness [People v. Gee, 99 NY2d 158(2002); In re James H., 34 NY2d 814(1974)], or from repeated showings of a photograph of defendant in photo arrays[People v. Dunlap, 9 AD3d 434 (2d Dep't,2004)]. Here, there were inconsistencies in the evidence which left open the possibility that Ms. Amorosa may have viewed Defendant's photograph in an earlier showing of three photos on July 9, none of which she identified. The potential suggestiveness resulting from the possibility that the witness viewed Defendant's photograph on July 9th, and may therefore have been inappropriately drawn to his photograph in the array she viewed on August 1st, and again in the Grand Jury, places the burden on the prosecutor to demonstrate that the in-court identification is based on a source independent of any possible taint. Accordingly, an independent source hearing with respect to the admissibility of an in-court identification by Ms. Amorosa will be held before trial. With respect to the livery cab driver, Cecilio Richards, an independent source hearing will also be held to determine whether he was sufficiently familiar with Defendant from having previously transported him, to eliminate the possibility of suggestiveness in the display of a single photograph. See, People v. Rodriguez, 79 NY2d 445(1992); People v. Thornton, 236 AD2d 430(2d Dep't, 1997).The Court finds that the composition of the photo array shown to Ms. Amorosa was free of suggestiveness. The individuals portrayed were sufficiently similar in appearance so that there was not a "substantial likelihood that the defendant would be singled out for identification." People v. Chipp, supra, 75 NY2d 327.

STATEMENTS

The People served notice pursuant to CPL 710.10(30)(1)(a) of their intent to [*9]offer written, oral and videotaped statements as evidence at trial. The first two statements are the telephone calls from Defendant to Detective Devaney at the 63rd Precinct on July 31, 2002, and on August 8, 2002. Annexed to the notice, the People provided Complaint-Follow Up forms containing the substance of those conversations, therefore Defendant's request to preclude for failure to provide sufficient notice is denied.

The second noticed statement, on January 14, 2003 at 1:00 p.m., in which Defendant acknowledged awareness of the crime but denied culpability, was made pre-Miranda at the arrest location while Defendant was in custody, in response to Detective McMahon's identifying himself to Defendant and telling him he was in Florida to investigate the death of Gary Foote. Defendant argues that his statement was made in response to the functional equivalent of questioning because it was designed to elicit an incriminating response. Defendant's statement was not prompted by Detective Devaney's words, but was a voluntary, spontaneous utterance, and therefore admissible. When, at the time of the arrest, the police merely inform defendant of the accusation against him, they do not engage in formal questioning or its functional equivalent. See, People v. Ealey, 272 AD2d 269(1st Dep't,2000); People v. Thomas 174 AD2d 447(1st Dep't,1991).

The People have indicated that they do not intend to offer evidence of any other oral statements elicited during the testimony at the hearing. It is noted, however, that such statements were preceded by oral and written Miranda warnings signed and initialed by Defendant.

The written statement for which CPL 710.30 notice was given was hand written by Defendant while he was in custody at the Florida Department of Law Enforcement in Orlando on January 14, 2003, at 4:45 p.m., concluding at 6:00 p.m.. Defendant had been properly advised of his Miranda rights by Detectives Devaney and McMahon. He knowingly, intelligently and voluntarily waived his rights prior to any interrogation and agreed to provide a written statement.

Defendant was brought to the Florida Department of Law Enforcement between 1 p.m. and 1:30 p.m. on January 14th. He was seated in an interview room and was offered soda. He was not handcuffed. He signed the Miranda card at 1:55 p.m. after having been read his rights and having responded that he understood. Detectives Devaney and McMahon spoke to Defendant on and off until about 4:45 p.m. when he began to write his statement.

The burden is on the People to establish that a defendant's statements were voluntary beyond a reasonable doubt. Once the prosecution has established the [*10]legality of the police conduct and that the defendant's statement was voluntary, the burden shifts to the defendant to show that his waiver was ineffective. People v. Smith, 220 AD2d 704(2d Dep't, 1995). The evidence at the hearing established the legality of the police conduct and the voluntariness of Defendant's waiver. Defendant has not offered any evidence which indicates that his waiver was ineffective.The videotaped statement taken on January 14, 2003, was preceded by another administration of the Miranda warnings. Defendant indicated he understood his rights and was willing to give the videotape statement. He exhibited no confusion or hesitancy, and answered all the questions in a coherent way. The statement began at 7:15 p.m. and lasted approximately 15 to 20 minutes, ending at about 7:34 p.m. Defendant had just finished a meal from Wendy's and had been at the police station for approximately 5 hours. He had been questioned on and off for about two hours, had taken a little over an hour to write out a statement, was given a meal and drink and had used the bathroom. The evidence adduced at the hearing established that the videotaped statement was voluntarily made. People v. Robinson, 5 AD3d 508(2d Dep't, 2004).

PAYTON

Defendant also moves for an order suppressing his statements as the product of an illegal warrantless arrest in his home in violation of Payton v. New York, 445 U.S. 573(1980).

The evidence is clear that Defendant was arrested outside the home after stepping out in response to Detective McMahon's request that he do so. Detective McMahon had his weapon concealed behind his back, and the Orange County Sheriff's deputies who were present had placed themselves so they would not be seen from the doorway of the apartment. Thus Defendant did not step out in response to a show of force. The testimony of Detectives Devaney and McMahon, as well as Defendant's witness, Nigel Lawrence, established that the area in front of the door where Defendant was taken into custody was a public area. The photograph submitted in evidence by Defendant does not suggest otherwise. The Payton rule prohibits the police from crossing the threshold of a suspect's home to effect a warrantless arrest absent exigent circumstances or the suspect's consent to the entry of police into his home. People v. Francis, 209 AD2d 539 (2d Dep't,1994). However, the exterior doorway to a private house is a public place for purposes of the Fourth Amendment, since a defendant has no legitimate expectation of privacy while exposed to public view. People v. Reynoso, 309 AD2d 769(2d Dep't, 2003). Since Defendant was arrested outside the doorway of [*11]his home, his arrest did not implicate the Payton rule. The motion to suppress on Payton grounds is denied.

RIGHT TO COUNSEL

Defendant has conceded that the police had probable cause to arrest him, but argues that they intentionally failed to secure a warrant and to comply with the statutory requirements governing extradition, in order to interrogate him before his right to counsel attached. He contends that once the police had Franz Joseph's statement implicating Defendant and the photographic identifications, the prosecutor could have drafted an accusatory instrument and secured a warrant. The police are not required to secure an arrest warrant as soon as probable cause to arrest exists. People v. Anderson, 290 AD2d 658(3d Dep't, 2002); People v. Counts, 214 AD2d 897(3d Dep't, 1995); People v. Siler, 197 AD2d 842(4th Dep't, 1993). Even a deliberate failure to obtain a warrant to avoid triggering a suspect's right to counsel does not warrant suppression of otherwise voluntary statements given following the warrantless arrest. People v. Caviano, 194 AD2d 429(1st Dep't, 1993); cf, People v. Robles, 72 NY2d 689(1988).

Moreover, the New York police were authorized to arrest Defendant without a warrant in Florida, notwithstanding the fact that the arrest was effected outside their geographical jurisdiction [CPL §§140.10(3), 140.55(3); Florida Statutes Annotated (FSA) §§ 941.31, 941.32, 941.33, 941.35]. "Generally, police officers have no power, including the authority to arrest, outside their geographical jurisdiction." People v. LaFontaine, 235 AD2d 93(1st Dep't, 1993); People v. Johnson, 303 AD2d 903(3d Dep't, 2003). However, there is an exception where the officers are actively assisted by officers of the state where the arrest is made. People v. Johnson, id. Such an arrest is proper if the arresting officers, acting outside their geographical jurisdiction, have probable cause for the arrest. People v. Perea, 182 AD2d 718(2d Dep't, 1992); People v. Wallace, 155 AD2d 70(2d Dep't, 1989); see also, People v. Chambers, 184 AD2d 568(2d Dep't, 1992). It is clear that Detectives Devaney and McMahon had personal and direct knowledge of the substantial evidence indicative of Defendant's participation in the murder.

The evidence is clear that Detectives Devaney and McMahon worked closely with the Florida Department of Law Enforcement and with the Orange County Sheriff's Department in Orlando in effecting the arrest of Defendant. The two detectives contacted officials at the Florida Department of Law Enforcement before they arrived in Orlando, and they met with the Florida officers before going [*12]to Defendant's address. They used equipment belonging to the Florida law enforcement agencies. Agent Lanfaciek was immediately behind Detective McMahon as they approached the door of Defendant's home and Agent Massi was with Detective Devaney when Nigel Lawrence was stopped at the gas station. Since Detectives Devaney and McMahon had probable cause to arrest Defendant in New York, and because they were actively assisted by Florida law enforcement personnel in making the arrest, they were authorized to arrest Defendant in Florida without a warrant.

Defendant contends that regardless of the existence of probable cause, had the proper extradition procedures been followed, Defendant's right to counsel would have attached and the police would not have been permitted to question him without counsel present. It is Defendant's position that once the New York police had probable cause, the prosecutor was required to draft and file an accusatory instrument and to apply for the issuance of an extradition warrant demanding the State of Florida to apprehend Defendant and turn him over to New York. Defendant argues that had these procedures been followed, Defendant would have been brought before a judge immediately upon his arrest, precluding any uncounselled police interrogation. See FSA §941.32.

CPL §§570.52 and 570.54 outline the procedures to be followed when New York seeks the return from another state of a person charged with a crime in New York. The district attorney of the county in which the offense was committed presents an application to the Governor of New York for the issuance of a requisition for the return of the person charged. When the Governor of this state demands the return of a person charged with a crime from the executive authority of any other state, the Governor issues a warrant commanding an agent to receive the person.

The Florida version of the Uniform Criminal Extradition Act (UCEA) parallels the New York statutory scheme. Florida requires that a demand upon the Governor of Florida for extradition of a person charged with a crime in another state be accompanied by an accusatory instrument or a warrant made before a magistrate of the demanding state. (FSA §941.03; compare, CPL §570.08). If the Governor decides that the demand should be complied with, he or she shall sign an arrest warrant (FSA §941.07;compare, CPL §570.18) which authorizes the arresting officer to turn the accused over to a duly authorized agent of the demanding state (FSA §941.08; compare, CPL §570.22), but the accused must first be taken forthwith before a judge who shall inform him of the demand made [*13]for his surrender, of the crime with which he is charged, and that he has the right to demand counsel and to apply for a writ of habeas corpus if he wishes to challenge the legality of the arrest (FSA §941.10; compare, CPL §570.24).

The Uniform Criminal Extradition Act also outlines the procedure to be followed for the arrest of a person charged with the commission of a crime in another state prior to requisition by the governor and the issuance of a governor's warrant. Such an arrest can be made pursuant to a warrant issued by a judge in the asylum state based on a affidavit stating that the accused has been charged with a crime in the other state (FSA §941.13; CPL §570.32). An arrest without a warrant is also permissible provided the arrestee is taken before a judge with all practicable speed for complaint to be made under oath against the accused setting forth the ground for the arrest (FSA §941.14; CPL §570.34). An arrest made pursuant to the aforementioned provisions requires however that the person arrested has been charged with a crime in the demanding state. In this case, there were no pending charges in New York; therefore, the extradition statutes were not applicable. At the time of Defendant's arrest there was no predicate for a request for extradition although he clearly did have a right to be taken before a judge.

An arrest without a warrant in an asylum state of a person who has not been charged with a crime in the demanding state is governed by the Uniform Act on Close Pursuit [CPL §§140.10(3), 140.55; FSA §§ 941.31, 941.32, 941.33, 941.35]. Such an arrest requires that the accused be taken "without unnecessary delay" to a court to determine the lawfulness of the arrest [FSA §941.32; CPL §140.55(3)]. This statutory requirement was not followed here. Defendant cites People v. Sanchez, 7/17/2003 NYLJ 26, (col. 3)(Sup. Ct, Kings County) as requiring suppression of his statements, arguing that the failure of the police to bring Defendant to a magistrate without delay was a statutory violation intended to prevent the attachment of his right to counsel until they had had an opportunity to question him in the absence of counsel. Sanchez is distinguished, however, by the fact that in Sanchez, New York City police officers went to the defendant's home in New Jersey, arrested him inside his home in violation of Payton v. New York, 334 US 573, and transported him directly to Brooklyn without obtaining a waiver of extradition. Under Payton, Sanchez's custodial statements were obtained as a result of a violation of constitutional rights. However, in this case, Defendant was not deprived of a constitutional right.

A statutory violation in effecting an out of state arrest does not alone require suppression of evidence in the absence of a knowing and intentional disregard of [*14]the statute. People v. Sampson, 73 NY2d 908(1989); People v. Walls, 35 NY2d 419(1974); People v. Johnson, supra, 303 AD2d at 906; Preiser, Practice Commentaries, McKinney's Cons Laws of New York, Criminal Procedure Law §140.55, Book 11A, page 560. There is no indication that Devaney and McMahon intentionally deprived Defendant of his statutory rights. The fact that within hours of Defendant's arrest, they acted to obtain a warrant from New York upon which to proceed to seek extradition from Florida indicates a good faith attempt to comply with the law.

Moreover, in contrast to Sanchez, Defendant herein did execute a valid waiver of extradition. In both Florida and New York, a person arrested in one state and charged with having committed a crime in another state may waive the issuance and service of a governor's warrant and all other procedures incidental to extradition by executing such written waiver in the presence of a judge, indicating that he consents to return to the demanding state, provided that before the waiver shall be executed, such judge must inform the arrestee of his rights to the issuance and service of a warrant of extradition and to obtain a writ of habeas corpus (FSA §941.26; CPL §570.50). The statute does not provide for appointment of counsel to explain such rights, although Defendant here was told that an attorney could be appointed to assist him if he chose to "fight extradition," according to the testimony of Deputy Derrett. In this case, Defendant's extradition rights were not explained by a judge but by a deputy sheriff in Orange County and the waiver was executed at that time. When Defendant appeared before the judge by video conference the following day, January 16, 2003, Judge Mihok did not reapprise Defendant of his rights.

However, notwithstanding the failure to strictly comply with the Florida statute governing waiver of extradition, the waiver is not thereby rendered ineffective. FSA §941.26(2) provides that "nothing in this section shall be deemed to limit the rights of the accused person to return voluntarily and without formality to the demanding state." The evidence establishes that Defendant was conscientiously and exhaustively apprised of his rights, the waiver itself is valid on its face and presumptively establishes Defendant's consent to return voluntarily to New York. As no evidence has been adduced to the contrary, the waiver should be honored. See, People v. Corder, 132 Misc 2d 444(County Ct, Monroe Co., 1986).

Moreover, as noted, a statutory violation does not alone require suppression of evidence. See, People v. Sampson, supra, 73 NY2d 908. While the right to [*15]counsel attaches and may not be waived in counsel's absence once formal judicial proceedings have begun upon the filing of an accusatory instrument [People v. Ramos, 99 NY2d 27(2002); People v. Samuels, 49 NY2d 218(1980)] which occurred here only after all the statements had been made, contrary to Defendant's contentions, the extradition process is not a critical stage of a criminal proceeding at which the right to counsel attaches. People v. Morton, 104 AD2d 569(2d Dep't, 1984). Defendant could therefore properly waive his Miranda rights and give his statements and waive extradition without counsel being present. After the warrant issued, the police did not question Defendant further.

Accordingly, Defendant's motion to suppress his statements is denied. An independent source hearing is ordered with respect to the identifications by Cecilia Amorosa and Cecilio Richards. The motion to preclude an identification by Franz Joseph is denied.

The foregoing constitutes the decision of the Court.

ENTER

J.S.C.

Dated: December 23, 2004