People v Politano

[*1] People v Politano 2006 NY Slip Op 51770(U) [13 Misc 3d 1210(A)] Decided on September 20, 2006 Nassau Dist Ct St. George, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through October 16, 2006; it will not be published in the printed Official Reports.

Decided on September 20, 2006
Nassau Dist Ct

The People of the State of New York

against

Ronald J. Politano, Jr., Defendant.



23252/05

Norman St. George, J.

The Defendant is charged with one (1) count of violating Penal Law §120.00(1), Assault in the third degree as a Class A Misdemeanor, one (1) count of violating Penal Law §120.14(1), Menacing in the second degree as a Class A Misdemeanor, and one (1) count of violating Penal Law §260.10(1), Endangering the Welfare of a Child as a Class A Misdemeanor.

On July 25, 2006, upon stipulation by both parties, this Court conducted a Huntley and a Mapp hearing. The Huntley hearing pertained to a statement allegedly made by the defendant to the police prior to his arrest, namely: that he had "grabbed the complaint by the arm and slapped her." The Mapp hearing pertained to the suppression of evidence, namely: a Remington 870 shotgun which was allegedly recovered by the police from under a bed in the defendant's apartment.

The People called one witness at the hearing, Sergeant Rothenberg of the Nassau County Police Department. The Defendant did not call any witnesses. Based on the testimony of Sergeant Rothenberg, this Court makes the following findings of fact and conclusions of law:

FINDINGS OF FACT:

This Court finds the testimony of Sergeant Rothenberg to be credible. Sergeant Rothenberg is an eight (8) year veteran of the Nassau County Police Department.

On November 2, 2005, Sergeant Rothenberg and his partner Police Officer Joseph Brady were in uniform, and on routine motor patrol in Inwood, Nassau County. At approximately 10:56 p.m. they received a radio call to respond to 32 Harris Avenue in Inwood regarding a domestic violence incident. Upon arriving at the location, Sergeant Rothenberg was met by the complainant Barbara Romaszko, and her mother. The location was the home of the complainant's mother. The [*2]complainant stated that she lived with her boyfriend, Ronald Politano, and infant daughter, in a second floor apartment at 7 Thomas Court in Inwood. She told Sergeant Rothenberg that at approximately 9:30 p.m. that evening, she was present in the apartment at 7 Thomas Court with her boyfriend and infant daughter. The complainant alleged that at that time and place, her boyfriend hit her, pointed a shotgun at her, and threatened to kill her and her baby. Ms. Romaszko stated that she then fled the apartment and went to her mother's house, leaving her infant daughter alone in the apartment with Mr. Politano.

After speaking with the complainant at 32 Harris Avenue, Sergeant Rothenberg and Officer Brady drove to 7 Thomas Court. Sergeant Rothenberg stated that they proceeded without police lights or sirens and at a normal driving speed. Sergeant Rothenberg testified that his purpose in going to the location was to "find the gun and make sure everything was okay." They arrived at 7 Thomas Court at approximately 11:20 p.m. The Sergeant could not recall if he knocked on the door or rang the bell, but recalled that the defendant either called out for them to come in or let them into the premises. Sergeant Rothenberg and Officer Brady followed the defendant upstairs to the second floor apartment and into the kitchen area. Once in the kitchen, Sergeant Rothenberg observed broken bowls, broken glasses and what he considered to be signs of a struggle. Sergeant Rothenberg asked the defendant "what happened" and the defendant allegedly stated that "there was a fight between him and the complainant and that he grabbed her by the arm and slapped her." When asked where the child was, the defendant allegedly responded "in the bedroom."

The Sergeant testified that at that point he wanted to determine if the infant was there and okay, so he went into the bedroom which was located on the same floor as the kitchen. Officer Brady remained in the kitchen with the defendant. Once in the bedroom, Sergeant Rothenberg observed that the infant daughter was in fact okay and that she was sleeping on the bed. While in the bedroom Sergeant Rothenberg observed a glass case which contained a number of shotguns. He testified that although there was a black Remington in the glass case, none of the shotguns in the glass case matched the description of the shotgun given to him by the complainant. Sergeant Rothenberg next decided to search under the bed because the complainant had told him that the shotgun used in the incident was under the bed. Sergeant Rothenberg recovered an unloaded black Remington 870 shotgun from under the bed (the black Remington which is the subject of the instant motion to suppress.) The defendant was then arrested. Sergeant Rothenberg stated that some time thereafter the remaining guns in the glass case were removed by the police.

The defendant argued that his alleged statement and the shotgun seized should be suppressed. Defendant claims that the police entered his apartment without a warrant, conducted a warrantless search, and arrested him within his apartment without a warrant. The People countered that the entry into the apartment by the police was consented to by the defendant, the statement was voluntarily made and the shotgun was legally seized. The People support their argument by relying on the emergency exception to the warrant requirement.

CONCLUSIONS OF LAW:

PROBABLE CAUSE TO ENTER THE APARTMENT:

The Fourth Amendment to the U.S. Constitution prohibits the police from making warrantless and nonconsensual entry into a suspects home in order to make an arrest. The landmark Supreme Court decision in the case of Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371 (1980), established that the "zone of privacy is nowhere more clearly defined than when bounded by unambiguous physical dimensions of individual's home, and at very core of Fourth Amendment stands the right of man to retreat into his own home and there be free from unreasonable government intrusion, and this is true as against seizures of property and seizures of person." The Fourth Amendment has "drawn a firm line at the entrance to the house," such that "absent exigent circumstances, that threshold may not reasonably be crossed without a warrant." Id. at 5.

One of the well established exceptions to the warrant requirement is the existence of exigent circumstances or otherwise referred to as the "emergency doctrine." In People v. Mitchell, 39 NY2d 173, 383 NYS2d 246, 347 NE2d 607 (1976), the Court of Appeals outlined the standards for evaluating whether exigent circumstances or an emergency exists. Firstly, there must be a reasonable basis for the police to believe there is an emergency at hand and there is an immediate need for police assistance to protect life or property. Secondly, any search of the premises must not be primarily motivated by the intent of the police to arrest the defendant or to seize evidence. Lastly, there must be probable cause to associate the emergency with the area or place searched. Id at 1.

This Court finds that the initial information received by Sergeant Rothenberg from the complainant was a reasonable basis justifying him in proceeding to the defendant's apartment for further investigation. There was sufficient information provided by the complainant which would cause the police to believe that there was an emergency present and an immediate need for them to protect the life of the complainant's infant daughter who was left in the apartment with the defendant (who had threatened to kill both of them, and who possessed a shotgun.) Once at the defendant's apartment, the conduct by the police in entering and proceeding to the defendant's second floor apartment based on the defendant either letting the police in or calling out to the police to come in constitutes the defendant consenting to the entry into the apartment by the police. This Court finds the inability of the Sergeant to recall whether he rang the bell or knocked on the door to be inconsequential.

Furthermore, the conduct of the police in entering and proceeding to the defendant's second floor apartment was also justified by the exigent circumstances presented by the allegations as [*3]detailed to Sergeant Rothenberg by the complainant. See People v. Dominquez, 141 AD2d 833, 529 NYS2d 889 (2nd Dept., 1988.) Although approximately ninety (90) minutes had elapsed between the alleged incident and the police meeting with the complainant, said time period does not diminish the nature of the emergency which still allegedly existed. See People v. Molnar, 98 NY2d 328, 746 NYS2d 673, 774 NE2d 738 (2002.)

STATEMENT BY THE DEFENDANT:

Once in the defendant's kitchen, Sergeant Rothenberg asked the defendant "what happened." This Court finds that said question was investigatory in nature. The defendant was not in custody and consequently there was no need for the defendant to have been read his Miranda warnings. The defendant voluntarily responded that he "there was a fight between him and the complainant and that he grabbed her by the arm and slapped her." Since the statement was voluntarily made and was not the result of a custodial interrogation, the defendant's motion to suppress the statement is denied.

ENTRY INTO THE BEDROOM:

After the defendant gave a statement as to what happened, Sergeant Rothenberg testified that he left the defendant in the kitchen with Officer Brady and proceeded into the bedroom to check on the condition of the infant daughter. There is no testimony that the defendant consented to Sergeant Rothenberg entering into the bedroom area. However, based on the allegation that the complainant's infant daughter was left in the apartment with the defendant who had previously threatened the complainant and her daughter, this Court finds the Sergeant's entry into the bedroom to check on the infant daughter to be reasonable and justified based on the emergency which was not abated until the location and condition of the daughter was established. Once in the bedroom, this Court finds that the rifles located in the glass case (though not the subject of the hearing) were in plain view and were properly seized by the police.

THE WARRANTLESS SEARCH UNDER THE BED:

Sergeant Rothenberg's action in looking under the bed in the bedroom constituted a search. There appears to be no valid reason for the search under the bed other that to find evidence. In fact, Sergeant Rothenberg specifically testified that he went to the defendant's apartment to "make sure everything was okay" and to "find the gun." Hence, his action in entering the bedroom and searching under the bed was consistent with his stated motivation. Again, there was no testimony that his conduct in searching under the bed was with the consent or even knowledge of the defendant or the complainant. The People did not claim that there was consent to enter the bedroom or consent to search under the bed. The People rely completely on the "emergency" exception to the warrant requirement to justify the police search under the bed.

This Court finds that the People's reliance on the emergency exception to justify a [*4]warrantless search under the bed in the defendant's bedroom is misplaced. At the time that the search under the bed was conducted, the infant daughter was safe and sleeping on the bed, and the defendant was being watched by Officer Brady. The defendant could have easily been removed from the apartment and the infant daughter held and turned over to her mother. The exigent circumstances and the emergency that had previously existed were effectively and completely neutralized and eliminated by the police. The threat to the daughter's life no longer existed. See People v. Matta, 76 AD2d 844, 428 NYS2d 491 ( 2nd Dept., 1980.) Moreover, even though the entry into the apartment was appropriate, any warrantless search would be limited in scope to the defendant's grab area. See People v. Matta, 76 AD2d 844, 428 NYS2d 491 (2nd Dept., 1980) citing Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034 ( 1969.) The defendant's grab area certainly does not include the area under the bed in another room.

Finally, as the Court of Appeals held in People v. Mitchell, 39 NY2d 173, 383 NYS2d 246, 347 NE2d 607 (1976), the search cannot be primarily motivated by an intent to seize evidence. Consequently, Sergeant Rothenberg's testimony regarding his motivation for the search under the bed prohibits the application of the emergency exception to the search since his stated reason for the search was to find the shotgun described by the complainant. In light of the fact that the police were not warranted in searching under the bed in the defendant's apartment, the seizure of the Remington 870 shotgun which was recovered from under the bed must be suppressed.

THE WARRANTLESS ARREST OF THE DEFENDANT:

Whether the arrest of the defendant is lawful rests upon whether the police had probable cause to arrest the defendant before and without the seizure of the shotgun. This Court finds that probable cause to arrest the defendant was firmly based on the allegations of the complainant together with Sergeant Rothenberg's observations of the broken bowls and broken glasses in the apartment. Furthermore, the signs of a struggle in the apartment, the statement of the defendant, and the observation by Sergeant Rothenberg of rifles in plain view in the bedroom served to further justify the police action in arresting the defendant. Hence, the police had probable cause to arrest the defendant before and without the seizure of the shotgun.

The People have failed to satisfy their burden of proof regarding the admissibility of the Remington 870 shotgun in that they failed to show that the search under the defendant's bed was valid or justified. Therefore, defendant's motion to suppress the Remington 870 shotgun is granted. Defendant's motion to suppress the statement allegedly made by him is denied.

This constitutes the decision and order of the court.

Dated: September 20, 2006

ENTER: [*5]

____________________________________

Norman St. George, District Court Judge

cc: Nassau County District Attorney's Office

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