People v Starks

[*1] People v Starks 2010 NY Slip Op 51783(U) [29 Misc 3d 1210(A)] Decided on October 15, 2010 Supreme Court, Nassau County St. George, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 15, 2010
Supreme Court, Nassau County

The People of the State of New York

against

Kyare A. Starks, Defendant.



653N/10

Norman St. George, J.

The defendant is charged with one (1) count of violating Penal Law §160.15(4), Robbery in the First Degree; one (1) count of violating Penal Law §160.10(1), Robbery in the Second Degree; one (1) count of violating Penal Law §160.05, Robbery in the Third Degree; one (1) count of violating Penal Law §155.30(4), Grand Larceny in the Fourth Degree; and one (1) count of violating Penal Law §155.30(5), Grand Larceny in the Fourth Degree.

On October 8, 2010, upon stipulation by both parties, this Court conducted a Huntley, Mapp, Dunaway and Wade hearing. (See People v Huntley, 15 NY2d 72 [1965]; Mapp v Ohio, 367 US 643, 81 SCt 1684, 6 LEd2d 1081 [1961]; Dunaway v New York, 442 US 200, 99 SCt 2248, 60 LEd2d 824 [1979]); and U.S. v Wade, 388 US 218, 87 SCt 1928, 18 LEd2d 1149 [1967]). The Huntley portion of the hearing pertained to a written statement allegedly made by the defendant to the Police after his arrest. The Mapp portion of the hearing was regarding a Blackberry cellular phone which was allegedly seized from the defendant. The Dunaway portion of the hearing was regarding the probable cause to arrest the defendant in his grandmother's apartment. The Wade portion of the hearing was regarding a photo array which was shown to the complainant.

The People called three witnesses at the hearing: Detective Gennaro DeStefano, a twelve year member of the Nassau County Police Department; Detective Sergeant Robert Galgano, a twenty-five year member of the Nassau County Police Department; and Detective Lyndon John, a seventeen year member of the Nassau County Police Department. The defendant did not call any witnesses. Based on the testimony of the Detectives, this Court makes the following findings of fact and conclusions of law:

FINDINGS OF FACT[*2]

This Court finds the testimony of Detective Gennaro DeStefano, Detective Sergeant Robert Galgano, and Detective Lyndon John, to be credible.

Detective DeStefano testified that on January 1, 2010, he was notified by the Lynbrook Police Department that a pedestrian robbery had occurred at approximately 7:30 p.m., at the intersection of Nieuman Avenue and Merrick Road, in Lynbrook, New York. Detective DeStefano immediately proceeded to that location. Upon arriving at the scene, Detective DeStefano spoke with Lynbrook Police Officers, and with the two complainants, Stephen Alonge and Michael Suter. The complainants informed Detective DeStefano that they were walking on Nieuman Avenue toward Merrick Road, when a car pulled up and three men jumped out of the car and approached them. The complainants told Detective DeStefano that one of the individuals, described as a "light-skinned male black," pulled out a dark colored handgun and demanded their cellular phones, money and valuables. Michael Suter told Detective DeStefano that the men took his Blackberry cellular phone. The complainants said that the men then got back into the car and drove away. Detective DeStefano recorded the phone number of Michael Suter's cellular phone. Detective DeStefano testified that, as a result of the information which he received from the complainants, he applied for a Pen Register and Trap and Trace Order, regarding complainant Michael Suter's cellular phone. The application for said Order was granted by a Nassau County Court Judge. The Order authorized the Police to use Global Positioning Satellite (G.P.S.) technology to track the location of the cellular phone.

Detective Sergeant Galgano testified that on January 7, 2010, he was investigating the alleged robbery in conjunction with members of the Nassau County Police Department Electronics Squad. The Electronics Squad was using G.P.S. technology to track the location of the complainant's cellular phone. The Electronics Squad reported that the G.P.S. tracking located the cellular phone in Brooklyn, New York. Detective Sergeant Galgano and Detective John proceeded to Brooklyn along with members of the Electronics Squad, and Officers from the Nassau County Bureau of Special Operations. The G.P.S. tracking of the cellular phone led them to an apartment building located at 245 Wortman Street, in Brooklyn. Detective Sergeant Galgano indicated that they entered the apartment building and observed a woman wearing a "Community Watch" jacket seated at a table in the lobby of the building. The woman appeared to be monitoring the people who entered the apartment building. The Detectives were then directed by the Electronics Squad to apartment 1L. Detective Sergeant Galgano testified that as he approached apartment 1L, the woman wearing the "Community Watch" jacket was simultaneously entering that exact apartment. Detective Sergeant Galgano asked the woman who lived there, and she responded that she lived there with her two grandsons. Detective Sergeant Galgano asked the woman if he could come into the apartment and the woman responded "yes." Detective Sergeant Galgano testified that when they entered the apartment, he saw two young men sitting on the couch in the living room. Detective Sergeant Galgano noticed that one of the young men, identified in Court as the defendant, was a "light-skinned male black," and was holding a Blackberry cellular phone. Detective Sergeant Galgano testified that he then used his Police Department issued cellular phone to dial the phone number of the complainant's Blackberry cellular phone. Detective Sergeant Galgano testified that at that point the Blackberry [*3]cellular phone that the defendant was holding immediately began to ring. Detective Sergeant Galgano then seized the Blackberry cellular phone from the defendant and placed him under arrest.

Detective Sergeant Galgano testified that subsequent to arresting the defendant, he met with the complainant, Michael Suter, and showed him a photo array of six (6) photographs. The photo array was admitted into evidence as "Exhibit 1." Detective Sergeant Galgano testified that he asked Michael Suter if he recognized anyone in the photo array, and if so, how he recognized the person. Detective Sergeant Galgano indicated that Michael Suter picked out the individual depicted in position five (5), and said that the individual was a person involved in the robbery. Detective Sergeant Galgano testified that the defendant was depicted in position five (5) of the photo array.

Detective John testified that on January 7, 2010, he was also involved in the investigation of the robbery in Lynbrook. He accompanied Detective Sergeant Galgano to Brooklyn to locate the complainant's cellular phone. He recalled arriving at 245 Wortman Street, in Brooklyn, and briefly speaking with a woman who was seated at a table in the lobby of the building. He informed the woman that they were Detectives from Nassau County and that they were investigating a robbery.

Detective John testified that after the defendant was arrested, he was transported to the Fifth Precinct in Nassau County. Detective John testified that at the Precinct, he advised the defendant of his Miranda Rights using a Miranda Rights card. The Miranda Rights card was admitted into evidence as "Exhibit 2." Detective John testified that the defendant indicated that he understood his rights and he waived his right to remain silent. Detective John asked the defendant questions about the alleged robbery. Detective John testified that the defendant gave an oral statement about the robbery which was reduced to writing. Detective John noted that the defendant reviewed the written statement and signed it. The written statement was admitted into evidence as "Exhibit 3." Detective John testified that he did not threaten the defendant, and did not use any physical force or coercion to cause the defendant to answer his questions or to sign the written statement.

CONCLUSIONS OF LAW

Defense counsel argues that there was no reason or basis for the Police to enter the building located at 245 Wortman Street, in Brooklyn, New York. Similarly, defense counsel argues that there was no basis for the Police to request entry into apartment 1L. Further, defense counsel contends that there was no probable cause to arrest the defendant since all the defendant did was possess a ringing cellular phone. Defense counsel suggests that the incoming call on the cellular phone which the defendant was holding was not necessarily from Detective Sergeant Galgano, and therefore there was no basis for Detective Sergeant Galgano to reasonably conclude that the cellular phone that the defendant was holding was the phone allegedly stolen from the complainant. Finally, defense counsel contends that the photo array, which was shown to the [*4]complainant, was unduly suggestive since the defendant was the only "light-skinned male black" depicted therein. The People respond that the Police legitimately entered the building located at 245 Wortman Street, in Brooklyn, New York, and into apartment 1L, based on the G.P.S. tracking of the allegedly stolen Blackberry cellular phone. The People further respond that there was probable cause to arrest the defendant based on him matching the description of one of the assailants, and based on the fact that the Blackberry cellular phone which he was holding began to ring when Detective Sergeant Galgano dialed the complainant's cellular phone number. The People argue that the photo array was not unduly suggestive.

ENTRY INTO THE BUILDING:

Based upon the combined testimony of the three Detectives, this Court finds that they were led to 245 Wortman Street, in Brooklyn, as a result of the Electronics Squad receiving the G.P.S. location of the complainant's cellular phone. The G.P.S. tracking of the cellular phone was authorized by the Pen Register and Trap and Trace Order. Since the use of the G.P.S. technology was authorized by the Pen Register and Trap and Trace Order, this Court finds that the location obtained using the G.P.S. technology provided the Police with not only a reasonable basis, but reasonable suspicion to travel to and enter the building located at 245 Wortman Street, in Brooklyn, New York.

ENTRY INTO THE APARTMENT:

Based upon the testimony adduced at the hearing, this Court finds that the Detectives were led to apartment 1L as a result of the Electronics Squad receiving the G.P.S. location of the complainant's cellular phone. As set forth above, the G.P.S. tracking of the cellular phone was authorized by the Pen Register and Trap and Trace Order. Consequently, the Detectives had reasonable suspicion to request entry into apartment 1L. This Court finds that the entry into apartment 1L, by the Detectives, was based on the consent of the apartment owner. The apartment owner turned out to be the same woman who was wearing a "Community Watch" jacket and who was previously seated at a table in the lobby of the building. Ironically, the woman also happened to be the defendant's grandmother.

PROBABLE CAUSE FOR THE ARREST OF THE DEFENDANT:

This Court finds that there was probable cause to arrest the defendant. To sustain a finding of probable cause to arrest, the evidence must show that the police possessed information that would lead a reasonable person to conclude that it was more probable than not that a crime had been committed, and that the person being arrested was the perpetrator. (See People v Rivera, 50 AD3d 458, 855 NYS2d 502 [1st Dept 2008] lv denied 11 NY3d 740, 864 NYS2d 399 [2008]). In this case, Detective Sergeant Galgano testified that the defendant fit the description of one of the individuals involved in the alleged robbery, i.e., a "light-skinned male black." In addition, the defendant was holding a Blackberry cellular phone that fit the description of the complainant's cellular phone. (See People v Turner, 37 AD3d 874, 829 NYS2d 261 [3rd Dept 2007] appeal denied 8 NY3d 991, 838 NYS2d 495 [2007]). Finally, the Blackberry cellular [*5]phone that the defendant was holding began ringing as soon as Detective Sergeant Galgano dialed the complainant's cellular phone number. Defense counsel's assertion that this could have merely been a coincidence is simply untenable. Moreover, the G.P.S. tracking of the complainant's cellular phone placed the phone within apartment 1L. Based upon all of the facts and circumstances, there was sufficient probable cause for the defendant's arrest. (See People v Bigelow, 66 NY2d 417, 497 NYS2d 630 [1985]).

SEIZURE OF THE CELLULAR PHONE:

This Court finds that the Blackberry cellular phone that was seized from the defendant was in the plain view of Detective Sergeant Galgano once he entered the living room of apartment 1L. In fact, it was being held by the defendant. The fact that the cellular phone began ringing after Detective Sergeant Galgano dialed the complainant's cellular phone number, gave Detective Sergeant Galgano a basis to seize it from the defendant. Further, Detective Sergeant Galgano's seizure of the Blackberry cellular phone was also justified as being incident to the defendant's arrest. (See People v Kalaj, 247 AD2d 633, 669 NYS2d 358 [2nd Dept 1998] appeal denied 92 NY2d 880, 678 NYS2d 27 [1998]). Therefore, the defendant's motion to suppress the Blackberry cellular phone is hereby denied.

PHOTO ARRAY:

This Court has reviewed the photo array and examined each of the six (6) photographs contained therein. The six (6) photographs depict individuals who exhibit similar characteristics as the defendant. This Court finds that a viewer's attention is not particularly drawn to the defendant. (See People v Parker, 257 AD2d 693, 684 NYS2d 300 [3rd Dept 1999] lv denied 93 NY2d 1024, 697 NYS2d 583 [1999]). This Court holds that there was nothing unduly suggestive regarding the photo array, or the manner in which Detective Sergeant Galgano presented the photo array to the complainant. This Court finds that the People established the reasonableness of the Police conduct and the absence of suggestiveness in the photo array. (See People v Douglas, 306 AD2d 696, 760 NYS2d 373 [3rd Dept 2003]). Defendant's motion to suppress the identification of the defendant is hereby denied.

WRITTEN STATEMENT BY THE DEFENDANT:

This Court finds that the written statement by the defendant was given after the defendant was arrested and in custody. Hence, the People are required to prove that the defendant was advised of his Miranda Rights, and that the defendant knowingly, intelligently and voluntarily waived his Miranda Rights prior to making the statement and that the statement was given voluntarily. (See Miranda v Arizona, 384 US 436, 86 SCt 1602, 16 LEd2d 694 [1966]). This Court finds that prior to Detective John asking the defendant any questions, he read to the defendant his Miranda warnings using a Miranda Rights card. Further, this Court holds that the defendant knowingly, intelligently and voluntarily waived his right to remain silent, answered the questions of Detective John, and voluntarily provided a written statement. This Court concludes that the written statement made by the defendant was voluntarily made by the defendant without any threats, physical force or coercion by Detective John. (See People v Vidal, 44 AD3d 802, 844 [*6]NYS2d 55 [2nd Dept 2007] lv denied 9 NY3d 1010, 850 NYS2d 398 [2007]). The defendant's motion to suppress the written statement is hereby denied.

This constitutes the opinion, decision and Order of the court.

Dated: October 15, 2010

ENTER:

____________________________________

Hon. Norman St. George

Acting Supreme Court Justice