People v Ormejuste

[*1] People v Ormejuste 2012 NY Slip Op 51005(U) Decided on June 4, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 4, 2012
Supreme Court, Nassau County

The People of the State of New York

against

Dario Ormejuste, Defendant.



1685N-10

Norman St. George, J.

Defendant Dario Ormejuste is charged with one count of violating Penal Law § 125.27, Murder in the First Degree as a class A felony; three counts of violating Penal Law § 125.25(1), Murder in the Second Degree as a class A felony; and one count of violating Penal Law § 265.03(1)(B), Criminal Possession of a Weapon in the Second Degree as a class C felony.

On May 15, 16, and 17, 2012, upon stipulation by the attorneys, this Court conducted a Huntley, Mapp, and Dunaway hearing. (See People v Huntley, 15 NY2d 72 [1965]; Mapp v Ohio, 367 US 643, 81 SCt 1684, 6 LEd2d 1081 [1961]; and People v Dunaway, 442 US 200, 99 SCt 2248, 60 LEd2d 824 [1979]). The Huntley hearing pertained to various oral statements and videotaped statements allegedly made by the defendant. The Mapp hearing pertained to clothing allegedly seized from the defendant. The Dunaway hearing pertained to probable cause for the arrest of the defendant.

The People called five (5) witnesses at the hearing: Police Officer Averill Thompson, a five (5) year veteran of the Nassau County Police Department; Police Officer Raul Rodriguez, a three (3) year veteran of the Nassau County Police Department; Police Officer Christopher Bringmann, a seventeen (17) year veteran of the Nassau County Police Department; Police Officer Phillip Brady, an eighteen (18) year veteran of the Nassau County Police Department; and Detective Carl Re, a twenty-eight (28) year veteran of the Nassau County Police Department. The defendant did not call any witnesses. Based on the testimony of the witnesses, this Court makes the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

This Court finds the testimony of Police Officers Thompson, Rodriguez, Bringmann, Brady, and Detective Re, to be credible.

Officer Thompson testified that on June 23, 2010, he was working a 7 pm to 7 am tour of [*2]duty for the Nassau County Police Department. He was in uniform, working alone, and patrolling the Fifth Precinct of Nassau County in a marked Police vehicle. Officer Thompson stated that at approximately 4:20 am, he received a radio assignment to do a "well check" at a residence located at 117-40 238th Street, Elmont, Nassau County, New York. Officer Thompson explained that a "well check" is a visit to a residence to determine if the residents are OK. Officer Thompson testified that, upon arriving at that location, he was met by an individual named "Tex Ormejuste" (hereinafter referred to as "Tex") who was the person who had requested the "well check." According to Officer Thompson, Tex explained that the house was owned by his brother, and that his brother, his brother's wife and his brother's two sons lived there. Tex told Officer Thompson that one of his brother's sons worked for the New York City Corrections Department, and that Tex had received a called from the Corrections Department indicating that the son had not reported to work for a few days. Tex stated that he had tried to contact his brother and his brother's family for a few days. Tex told Officer Thompson that when he arrived at the house he heard sounds inside and heard music playing inside the house, but then the music was suddenly turned off. Tex said that he had also knocked on the door of the house, with no response. Officer Thompson noted that a light was on inside the rear of the house on the first floor. While in Officer Thompson's presence, Tex called the cell phone of his brother, called his nephew, and called the house phone. Tex received no response to these phone calls. Officer Thompson testified that when Tex called the house phone, he heard the sound of a phone ringing inside the house. Officer Thompson stated that he called out "Police," and knocked on the doors and windows of the house, and received no response. Officer Thompson walked around the outside of the house and did not observe any indications of a forced entry. Officer Thompson testified that all of the doors of the house were locked, all of the windows were shut, and all of the shades were down. Officer Thompson called his supervisor, Sergeant Rooney, to the scene to assess the situation. Officer Thompson stated that other Officers also arrived at the location. Officer Thompson indicated that when Sergeant Rooney arrived he checked the outside of the house. The other Officers again knocked on the doors and the windows of the house, and called out "Police," with no response. Officer Thompson testified that Sergeant Rooney directed Tex to call all of the numbers that he had for his brother and family members. Tex complied with Sergeant Rooney's request, and Tex received no response to any of these calls. Officer Thompson testified that Sergeant Rooney questioned Tex about whether his brother could have left town or could be on vacation. Tex told Sergeant Rooney that if his brother would have left town or was away, his brother would have informed him. Tex indicated to Sergeant Rooney that he normally spoke with his brother every day, and it was now the third day that he had not heard from his brother. Officer Thompson stated that Sergeant Rooney also contacted the New York City Corrections Department to confirm that Tex's nephew had not reported to work and had not called. At that point, Sergeant Rooney authorized entry into the house to investigate further.

Officer Thompson testified that he, along with other Officers, removed an air conditioner from one of the first floor windows of the house, and then he climbed into the window. Officer Thompson indicated that the room which he entered appeared to be a master bedroom. Officer Thompson stated that he attempted to open the bedroom door; however, the door was locked. Officer Thompson pried the door open and announced "Police," and received no response. Officer Thompson indicated that as soon as he opened the door, he smelled the strong odor of bleach and [*3]observed a towel at the threshold of the doorway. Officer Thompson also observed towels on the threshold of the other hallway doors. Officer Thompson testified that he heard movement and walking coming from the upstairs of the house. Officer Thompson again announced "Police, anybody here," and received no response. Officer Thompson went immediately to the kitchen door to let the other Police Officers into the house. Officer Thompson testified that he continued to smell the strong odor of bleach and noticed what appeared to be a couch covered with a sheet in the kitchen. Officer Thompson testified that as Sergeant Rooney and the other Officers entered the kitchen, he pulled back the sheet and discovered what appeared to be a stiff, dead body on the floor. Officer Thompson also observed blood surrounding the body. At that point, Sergeant Rooney decided to vacate the house, and call in the Emergency Services Unit (ESU) and the Bureau of Special Operations (BSO) Officers to handle the scene.

Officer Bringmann testified that on June 23, 2010, he was working a 7 pm to 7 am tour of duty for the ESU of the Nassau County Police Department. At approximately 5 am, he received a call to respond to 117-40 238th Street, Elmont, Nassau County, New York. At 5:10 am, Officer Bringmann responded to the location with three (3) other ESU Officers. Officer Bringmann and the other ESU Officers were informed that a "well call" was made to the house and that a dead body was found inside the residence. The ESU Officers established a perimeter around the house by having an Officer stationed at each corner of the house. Officer Bringmann explained that, since there was the possibility that a gun had been involved in the murder, the ESU Officers maintained their positions, watched the house, and waited for BSO Officers to arrive and enter the house. Officer Bringmann testified that as he was watching the house, he saw a curtain move in the upper right window of the house. Officer Bringmann stated that, approximately five minutes later, a man walked out of the front door of the house and motioned to sit down. Officer Bringmann testified that it appeared that the man was about to smoke a cigarette. Officer Bringmann identified the man, in Court, as the defendant Dario Ormejuste. Officer Bringmann stated that the defendant was ordered not to move. Officer Bringmann testified that the defendant asked "what was going on," and the defendant was again ordered not to move. According the Officer Bringmann, the defendant began walking and was tackled by two ESU Officers. Officer Bringmann testified that the defendant began cursing and fighting with the Officers. Officer Bringmann stated that the defendant was then "Tasered." Officer Bringmann explained that a "Taser" is a non-lethal device that applies 50,000 volts of electricity to an individual in order to incapacitate them for five to ten seconds. After the defendant was "Tasered," he discontinued fighting and was handcuffed. After the defendant was handcuffed by one of the ESU Officers, he was handed over to Officer Rodriguez of the Fifth Precinct.

Officer Rodriguez testified that he was present at 117-40 238th Street, Elmont, Nassau County, New York, when the defendant was placed into custody. Officer Rodriguez indicated that the defendant was handed over to him to search and bring to the Fifth Precinct. Officer Rodriguez initially did a pat down search of the defendant. Officer Rodriguez stated that he also searched a book bag which the defendant was carrying and that the book bag contained clothes, change, a notebook and paperwork. Officer Rodriguez stated that he placed the defendant in the rear of his patrol car and waited with him. Officer Rodriguez testified that, while the defendant was seated in [*4]the patrol car, the defendant spontaneously said "Smoke Jesus Christ," together with other religious statements. Officer Rodriguez testified that he was then directed to take the defendant to the Fifth Precinct and to wait with the defendant until the Detectives arrived. Officer Rodriguez stated that he took the defendant to the Fifth Precinct and handcuffed him to a bench in a locked interview room.

Officer Brady testified that on June 23, 2010, he was working a 7:30 pm to 5:30 am tour of duty for the BSO of the Nassau County Police Department. At approximately 5:30 am, he received a call to respond to 117-40 238th Street, Elmont, Nassau County, New York. Officer Brady indicated that he was informed that there was a man with a possible weapon inside the residence. Officer Brady stated that he responded to the location at 6:30 am with ten (10) other BSO Officers and one (1) BSO Supervisor. Officer Brady testified that ESU Officers were already at the residence and had established a perimeter around the house. Officer Brady testified that while the BSO Officers were receiving their briefing, they were informed that an individual had walked out the front door of the house and was in custody. Officer Brady stated that he and the other BSO Officers entered the house through the front door and searched the house. Officer Brady testified that they first went upstairs. Officer Brady testified that he saw a black Glock handgun on a night stand in the upstairs bedroom. Officer Brady stated that when they searched the first floor, he observed a dead male on the floor in the kitchen, who had been tied up and who was in a pool of blood. Officer Brady testified that there was a strong smell of bleach and a rancid smell throughout the house. Officer Brady testified that when they searched the basement he observed pools of blood on the basement floor. Officer Brady stated that in the basement he saw another dead body and detected a strong dead smell. Officer Brady testified that after the BSO Officers had searched the entire house, the scene was turned over to the Detectives.

Detective Re testified that on June 23, 2010, he was assigned to investigate the murders at 117-40 238th Street, Elmont, Nassau County, New York. Detective Re first responded to the scene and spoke with Detective Gary. He then went to the Fifth Precinct, together with Detective DiPietro, and met with an individual who he identified, in Court, as the defendant Dario Ormejuste. Detective Re testified that the defendant was uncuffed and in an interview room at that time. Detective Re indicated that the defendant appeared lucid and did not have any visible injuries. Detective Re introduced himself and asked the defendant if he wanted anything to eat or drink. Detective Re asked the defendant various pedigree questions, which the defendant answered. The defendant was later given a bagel to eat. Detective Re testified that he read to the defendant "Miranda Warnings" using a Miranda card, which was admitted into evidence as People's Exhibit 1. Detective Re asked the defendant if he understood his rights and was willing to answer questions. Detective Re stated that the defendant indicated that he understood his rights, signed and initialed the Miranda card, and agreed to answer questions. The defendant made various statements to Detective Re about the incident. According to Detective Re, the defendant said that he lived on the second floor of the house, his mother and father lived on the first floor of the house, and his brother lived in the basement. The defendant stated that he had not seen his parents or his brother in a couple of days. The defendant indicated that his daily routine was that he got up every day at 6:40 am, ate peanut butter cups, and then would leave the house and spend all day at a local park. The defendant also [*5]drew a map depicting the park that he went to each day. The map was admitted into evidence as People's Exhibit 2. When asked about the fact that his father was dead on the kitchen floor of their house, and his brother was dead in the basement, the defendant said that a Haitian gang called "Lugaroo" must have killed them. When the defendant was informed that his mother was missing, the defendant had no reaction. The defendant said that he never smelled any bleach in the house, but if there was bleach in the house it must have been left by "Lugaroo." The defendant indicated that his parents were very strict and that his mother recently accused him of stealing money from her. The defendant said that he was jealous of his brother because his brother had a good job and his parents treated his brother better than him. Detective Re testified that during his interview with the defendant, he was contacted by Detective Gary who requested that the defendant be brought to the Homicide Bureau so that they could take a videotaped statement from the defendant. Detective Re stated that he brought the defendant to the Homicide Bureau where the interview continued and was videotaped.

CONCLUSIONS OF LAW

Defense counsel argues that there was no reason or basis for the Police to initially enter into the residence without a warrant. Defense counsel points out that there was no emergency at the time of the Police entry. The only information that the Police had was that Tex had not heard from his brother or his brother's family, and that his nephew had not gone to work for a few days. Further, the Police testified that there was no evidence of forced entry into the house. Defense counsel concludes that since the Police did not have a valid warrant to enter the house, everything which they found within the house must be suppressed. Defense counsel asserts that the defendant's statements should similarly be suppressed as the fruit of the poisonous tree. In addition, defense counsel argues that there were multiple custodial interrogations, at different locations, without the defendant being re-mirandized.

The People respond that the Police had a valid basis to enter the residence without a warrant based upon the statements of Tex Ormejuste that he had not heard from his brother or his family in a number of days, that his nephew, who was a NYC Corrections Officer, had not reported to work in a number of days, and based upon the Police Officers' observations at the scene. The People argue that there was no need to re-mirandize the defendant.

INITIAL ENTRY INTO THE RESIDENCE:

It has been long held that the Police may enter a residence without a warrant where there exists an emergency. The standard for determining whether an emergency exists was set forth by the Court of Appeals, in People v Mitchell, 39 NY2d 173, 383 NYS 2d 246 [1976]. In order for there to be an emergency:

(1) the Police must have reasonable grounds to believe that there is an emergency and an immediate need for their assistance for the protection of life or property; and [*6]

(2) the search must not be primarily motivated by an intent to arrest and seize evidence; and

(3) there must be some reasonable basis, approximating probable cause, to associate the emergency with the area to be searched.

In this case, the Police contact was initiated by a family relative, Tex Ormejuste, who was concerned about the well being of his brother and his brother's family. Tex had been unable to reach his brother or his brother's family for a few days. Notably, his nephew, who was a New York City Corrections Officer, had not reported to work for a few days, had not called in to work, and could not be reached. Finally, upon his arrival at the residence at 4 am, Tex reported that he heard music playing in the house and saw a light on. Inexplicably, the music which Tex heard playing was abruptly turned off. Officer Thompson also noticed, when he arrived at the house, that there was a light on inside the rear of the house. Officer Thompson made repeated attempts to gain the attention of anyone in the house by knocking on the doors, ringing the bell, and calling out "Police." These efforts were repeated by Sergeant Rooney and the other Officers. Numerous calls were placed by Tex to his relatives while the Police were present. It is clear from the information provided by Tex, in addition to the observations of the Police at the scene, that the Police had reasonable grounds to believe that there was an emergency and that their assistance was needed. It is also clear that the entry into the house by the Police was not motivated by an intent to arrest anyone or seize evidence, it was motivated by the concerns of Tex. Finally, the house was the obvious place to search since the entire family lived there.

Under the totality of circumstances presented herein, this Court finds that the Police had a valid emergency basis to enter the residence without a warrant. Further, upon finding a dead body on the kitchen floor of the residence, the Police had probable cause to enter the house to search for additional victims and suspects.

PROBABLE CAUSE TO ARREST THE DEFENDANT:

Based upon the combined facts and circumstances presented herein, this Court finds that the Police had probable cause to arrest the defendant. As indicated above, the defendant's Uncle had repeatedly attempted to contact his brother and his brother's family members, to no avail, for a number of days. The defendant's brother, a Corrections Officer, had not shown up for work for a number of days. There was music playing inside the residence at 4 am, which was mysteriously turned off. The Police, who were called to the location at the behest of the defendant's Uncle, had been ringing the door bell of the residence, knocking on the doors and windows of the residence, and yelling to get the attention of anyone in the house for two (2) hours. After entering the house, based upon the emergency presented, the Police discovered a dead body on the kitchen floor. The Police also detected the strong smell of bleach and death permeating the entire house. The house was surrounded by at least thirty (30) Police Officers. In the midst of all this commotion, the defendant came casually strolling out of the front door of the house and attempted to sit down and have a cigarette as if nothing was amiss. The Police were justified in immediately arresting the defendant.[*7]

SEARCH OF THE DEFENDANT:

Officer Rodriguez testified that he searched the defendant immediately after he was arrested. Since this Court finds that there was probable cause to arrest the defendant, the search of the defendant was legally permissible as a search incident to a lawful arrest. (See People v Weintraub, 35 NY2d 351 [1974]; People v Anderson, 91 AD3d 789 [2nd Dept 2012]; People v Ralston, 303 AD2d 1014 [4th Dept 2003]). The defendant's motion to suppress the clothes seized from him is hereby denied.

STATEMENTS BY THE DEFENDANT:

The defendant allegedly made an oral statement to Officer Rodriguez, oral statements to Detective Re, and videotaped statements to Detective Re and Detective Gary.

Regarding the oral statement to Officer Rodriguez, it is clear that the defendant was arrested prior to making the statement. The defendant was not read "Miranda Warnings," prior to making the statement. However, at the time the defendant made the statement to Officer Rodriguez, the defendant was not being questioned; therefore, "Miranda Warnings" were not required. This Court finds that the statement by the defendant to Officer Rodriguez was spontaneously made by the defendant. The statement was also voluntarily given by the defendant. Consequently, the defendant's motion to suppress the oral statement made to Officer Rodriguez is denied.

Regarding the oral statements to Detective Re, the People elicited testimony from Detective Re that he met with the defendant, after his arrest, in an interview room in the Fifth Precinct. Detective Re testified that he read "Miranda Warnings" to the defendant using a Miranda card. Detective Re testified that he asked the defendant if he understood his rights and was willing to answer questions. Detective Re testified that the defendant indicated that he understood his rights, signed and initialed the Miranda card, and agreed to answer questions. Thereafter, the defendant made various oral statements to Detective Re. The defendant also drew a map for Detective Re. This Court holds that the defendant knowingly, intelligently and voluntarily waived his right to remain silent, and voluntarily answered the questions of Detective Re. This Court concludes that the oral statements made by the defendant were voluntarily made without any threats, physical force or coercion. (See People v Vidal, 44 AD3d 802, 844 NYS2d 55 [2nd Dept 2007] lv denied 9 NY3d 1010, 850 NYS2d 398 [2007]). Consequently, the defendant's motion to suppress the oral statements made to Detective Re is hereby denied.

Regarding the videotaped statements made by the defendant to Detective Re and Detective Gary, Detective Re asked the defendant if he was still willing to answer questions prior to the defendant giving a videotaped statement. The defendant consented to the additional questioning. Also, the additional questioning was commenced a short time after there was a break in the initial [*8]questioning. It is well settled that where a person in Police custody has been given their Miranda warnings, and voluntarily and intelligently waives those rights, it is not necessary to repeat the warnings prior to subsequent questioning within a reasonable time thereafter, so long as the custody has remained continuous (see People v Glinsman, 107 AD2d 710, 484 NYS2d 64 [2nd Dept 1985], appeal denied 64 NY2d 889 [1985], cert denied 472 US 1021, 105 SCt 3487, 87 LEd2d 621 [1985]; People v Holland, 268 Ad2d 536, 703 NYS2d 57 [2nd Dept 2000], leave denied 95 NY2d 835 [2000], Habeas Corpus denied 216 FSupp2d 227 [SDNY 2002], judgment affirmed 324 F3d 99 [2nd Cir 2003], cert denied 540 US834, 124 SCt 86, 157 LEd2d 63 [2003]). Based on these circumstances, this Court finds that the Police did not need to re-mirandize the defendant prior to the additional videotaped questioning. Consequently, the defendant's motion to suppress the videotaped statements made to Detective Re and Detective Gary is hereby denied.

This constitutes the Opinion, Decision and Order of this Court

Dated: June 4, 2012

Mineola, New York

Hon. Norman St. George

Acting Supreme Court Justice