People v Lexune

[*1] People v Lexune 2018 NY Slip Op 50683(U) Decided on May 2, 2018 Supreme Court, Kings County Konviser, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 2, 2018
Supreme Court, Kings County

The People of the State of New York, Plaintiff,

against

Rolanso Lexune, Defendant.



8345/16



Appearing on behalf of the defendant:

Joshua Horowitz, Esq.

356 Fulton Street

Brooklyn, NY 11201

(718) 237-0303

Appearing on behalf of the People:

Assistant District Attorney Vincent Bocchetti

Assistant District Attorney Sydelle Exantus

Kings County District Attorney's Office

350 Jay Street

Brooklyn, NY 11201

(718) 250-3719
Jill Konviser, J.

On April 20, 23, and 24, 2018 this Court conducted a combined Dunaway, Payton, Mapp, Huntley, and independent source hearing.[FN1] Detectives James McCafferty, Michael Habert, Herve Francois, and Janet Pena, and civilian witnesses Jeanine Beauvil and Shanta Buckley testified for the People. The defendant testified on his own behalf. The Court heard oral argument from the parties. The defendant's motion is granted in part and denied in part, as follows.

The Court makes the following findings of fact and conclusions of law.

Findings of Fact

The People's Case

Detective James McCafferty, employed by the New York Police Department (hereinafter "NYPD") for approximately thirty-four years, twenty-three with Brooklyn South Homicide, and Detective Michael Habert, employed by the NYPD for approximately twenty-six years, fourteen with Brooklyn South Homicide, testified that on October 1, 2016, they were assigned to investigate a homicide that had taken place at a cell phone store located at 2184 Bedford Avenue in Brooklyn. When they arrived at the store at approximately 2:15 p.m. on October 1, 2016, they observed a woman, later identified as Daneisha Smith, lying on the floor in the back room of the store, bloodied, and apparently deceased.[FN2]

McCafferty and Habert described the layout of the store — a front showroom with a door in the back leading to a middle room, which also had a door leading to a third room in the rear. Between the middle and third rooms, there was a large two-way mirror. [FN3] The detectives observed several surveillance cameras throughout the location. They then viewed recordings from those cameras that showed all three rooms of the store. The recordings also showed Smith's murder in its entirety.[FN4]

In short, a man entered the store and engaged in a verbal altercation with Smith.[FN5] The man was carrying a red bag. When Smith picked up a cell phone from the counter, the man pushed her into the middle room and closed the door. Smith struggled with the man, who put his arm around her neck and threw her to the floor. Smith attempted to get to the door several times, but each time the man wrestled her away and back onto the floor. After several minutes, and with Smith subdued, the man opened the door leading to the front showroom and peered out. At that point, Smith struggled to her feet and managed to get to the third room in the rear, locking the door behind her. Just after Smith locked herself in the third room, the man repeatedly kicked and slammed his body into the door in an effort to force it open, while Smith struggled to hold it closed from the other side. The force of the man's blows and kicks caused the wall to shake and the door to bulge, but it did not break. He then kicked the two-way mirror between the middle and third rooms, while Smith, still in the third room, picked up an office phone and attempted to make a call. The man, unable to break the mirror by kicking it, picked up an object and smashed the mirror. As the man scrambled through the broken glass and into the third room, Smith ran from him and towards the door. The man grabbed her by the neck, preventing her from leaving. He then picked up a shard of broken mirror and attacked Smith with it. As she struggled, he put [*2]her in a chokehold and again wrestled her to the floor. He then straddled her, pinning her to the floor as he wrapped his hands around her neck. When Smith attempted to fight back, he appeared to press harder, using his body weight to apply additional force to her neck. The man grabbed another shard of glass and used it against his victim. He then appeared to relent, and Smith staggered to her feet. He held on to the shard of glass and continued to prevent Smith from reaching the door. The man then allowed Smith to go into the middle room where she took a cell phone out of her purse. The two appeared to argue for several minutes until the man, still wielding a shard of glass, grabbed the cell phone from Smith. He then forced her back into the third room and slammed the door shut. Smith continued to struggle with him, at one point opening the door, but the man once again threw her to the floor and once again slammed the door shut. Next, while the man was preoccupied looking at something on Smith's phone, she picked up a shard of glass and jabbed him. The man then put the cell phone down, put her in a chokehold, and smashed her to the floor. He then applied pressure to Smith's throat for several minutes. Weakened, but still struggling, Smith once again attempted to reach the door, and the man once again prevented her from doing so by putting her in a chokehold. After several more minutes of pushing and shoving, Smith cracked open the door — the man immediately slammed it shut. And then, for a final time, he slammed her to the floor. Smith struggled, while the man, straddling her, appeared to strangle her. After subduing Smith, the man got up, opened the door as if to leave, then returned to Smith's prone, motionless body, and pressed down on her neck several times. Next, he went into the middle room, opened Smith's purse — checked her wallet — and went back into the third room. This time, the battered and prone Smith appeared to show some signs of life and, so, the man again appeared to strangle her until her movements ceased. He then went into the middle room and peeked out the door into the showroom several times, each time returning to Smith. When Smith, still prone, moved ever so slightly, the man, for a final time, strangled her until no movement could be discerned. He then picked up his red bag, located the keys for the front door, put his hood over his head, and let himself out the front door of the store.

At some point while McCafferty and Habert watched the video surveillance recordings, Detective Herve Francois arrived at the murder scene. Francois testified that he has been employed by the NYPD for approximately seventeen years and is currently assigned to the 70th Precinct Detective Squad. Francois also viewed the video surveillance recordings and observed a man, and a woman, later identified as Daneisha Smith, engaged in a verbal altercation. The man then forced Smith into a back room, and, following a lengthy struggle, he strangled Smith to death.[FN6] Francois explained that he observed the man carrying a red messenger-style bag in the video, and, when leaving the location, take a cell phone and keys with him.

At approximately 4:00 p.m. that day — October 1, 2016 — McCafferty and Habert went to Daneisha Smith's home, an apartment that she shared with her mother and sister, Althea Dawkins, located at 380 East 34th Street in Brooklyn, to inform them that Daneisha had been killed. Dawkins told the detectives that her sister, Daneisha, had been having problems with her boyfriend, Rolanso Lexune, and that Daneisha had recently had him arrested, as he had begun to [*3]abuse her pysically. Dawkins explained that her sister and Lexune had been together for approximately two years and that Lexune, who had been a frequent visitor to the apartment that Daneisha shared with Dawkins and their mother, was no longer welcome after he started physically abusing her sister. Dawkins showed the detectives Daneisha's Facebook page and the detectives concluded that the woman in the surveillance footage from the cell phone store was the same woman depicted on the Facebook page. Nevertheless, they showed Dawkins several still photographs taken from the video surveillance recordings, and Dawkins confirmed that the woman was her sister, Daneisha. Dawkins then showed the detectives Lexune's Facebook page, and the detectives concluded that the man in the surveillance footage from the cell phone store was the same man depicted on Lexune's Facebook page. Nevertheless, they showed Dawkins several still photographs taken from the video surveillance recordings, and Dawkins confirmed that the man in the video was her sister's boyfriend, Rolanso Lexune.[FN7] Dawkins further informed the detectives that the defendant lived with his wife and three or four young children at 1419 New York Avenue, apartment 1F in Brooklyn. Dawkins explained that although Creole was the defendant's first language, he also spoke English, the language with which the two had frequently conversed.

McCafferty and Habert next obtained information from an arrest report for July 21, 2016, when the defendant allegedly assaulted Smith. Additionally, the detectives confirmed that the address provided by Dawkins was, in fact, the defendant's home address. McCafferty and Habert also learned that in March of 2016, the defendant's wife had filed a Domestic Incident Report (hereinafter "DIR") against the defendant, at that same address.

Shortly thereafter, McCafferty and Habert went to the defendant's apartment, located approximately five minutes away from the cell phone store/murder scene. Several detectives were present in the hallway of the apartment building and other officers were watching some of the apartment windows from the outside of the building. McCafferty and Habert learned that in addition to the defendant possibly being inside the apartment, his wife and four young children were there as well. For approximately twenty to thirty minutes, detectives were repeatedly knocking on the door, identifying themselves as police officers, and calling the defendant's name.[FN8] The detectives heard children inside of the apartment, and Habert also heard movement inside, that he described as "footsteps," and what sounded like a kitchen utensil, drop on the floor. Habert attempted to speak with individuals in the neighboring apartments, but they were uncooperative. Habert then climbed the fire escape and looked into a window of the apartment. Although it was dark inside, Habert could see the kitchen area of the apartment. Habert called out, and could see some kind of movement in the apartment, but no one from inside of the apartment responded. Habert returned to the hallway outside of the apartment. None of the officers present tried the handle of the door to determine if it was unlocked, rather they kept knocking.

Meanwhile, McCafferty went up to the apartment door, listened closely, and could hear [*4]slight movement, but nothing else. Notably, he could no longer hear any sounds from the young children. Habert testified that at this point, based on the video of the killer — identified as the defendant — strangling his girlfriend to death, the unresponsiveness of the individuals inside of the apartment, the disconcerting silence of the four young children, the alleged prior abuse of Smith, and the previously filed DIR against the defendant by his wife, he feared that the defendant's wife and children were in danger. McCafferty testified that he, too, was concerned that the children were no longer making noise. In his experience, it is impossible to keep young children completely silent. Fellow detectives had consulted a supervisor about calling the Emergency Services Unit (hereinafter "ESU") to force open the apartment door, but McCafferty and Habert chose not to contact them. Instead, either McCafferty or another detective suggested that they ratchet up the knocking and "make some noise," to coax the defendant from the premises. Detective Campos, therefore, kicked at the door with the heel of his shoe, towards the bottom of the door, and the door "popped open," surprising both McCafferty and Habert.[FN9]

Habert, who was closest to the door as it opened, immediately heard children crying. He then heard thumping sounds, as if someone was being hit in the chest by a fist, or which, in his experience, sounded as if someone was being stabbed. Habert drew his gun and went in. McCafferty followed. The defendant's wife and children were hysterical. It was dark inside and there was a curtain of beads obscuring the entrance to the living room. Habert yelled at someone to turn on a light. Habert then observed the defendant on the couch, bleeding from the chest, with a knife clutched in his hand.[FN10] McCafferty observed the defendant on the couch with his head back, bleeding from the chest and breathing heavily. Habert pointed his gun at the defendant and ordered him to drop the knife — the defendant complied. Habert looked towards the rear of the apartment and saw the defendant's wife and "little" children peering out of what appeared to be a bedroom door.

Habert informed his fellow officers that the defendant had stabbed himself and needed an ambulance. McCafferty made the call. Habert went to the bedroom, picked up one of the children and took another child by the hand. The defendant's wife was holding the smallest child and an older male child stood nearby. Habert had them follow him, telling the children to close their eyes, while reassuring them that all was okay. After escorting the family to a neighbor's apartment, Habert returned to the defendant's apartment.[FN11] By that time, the defendant had been handcuffed. Habert grabbed a sheet from a bunk bed and held it to the defendant's wound until [*5]he was taken to a waiting ambulance.[FN12]

McCafferty "conducted a quick sweep of the apartment" to determine whether anyone else was inside the apartment "for everyone's safety." He encountered no one. On the floor of the bedroom, McCafferty observed a red bag that he believed was the bag carried by the killer in the video surveillance recordings. Additionally, McCafferty observed "a couple of knives" and some cell phones. The apartment was secured while a search warrant was obtained for the bag, knives, and cell phones.[FN13]

Detective Francois arrived at the defendant's apartment to act as a translator, as the defendant's wife spoke only Creole.[FN14] When Francois arrived at the defendant's apartment building, he observed the defendant being placed into a waiting ambulance — Francois recognized the defendant from the video surveillance recordings of the murder that he had seen earlier that day.[FN15] Francois testified that the defendant's wife, who was in the apartment, was "crying" and appeared to be "shocked." Francois explained what was happening and told her that the police officers were there to conduct an investigation as her husband, the defendant, was in trouble. At no point did the defendant's wife ask the officers to leave, in fact, she was "very cooperative." Shortly after Francois left the defendant's apartment, he applied for a search warrant of the apartment, seeking, inter alia, a red messenger-style bag, knives, and cell phones.

Later that same day, October 1, 2016, Francois went to the emergency room of Kings County Hospital, where the defendant was to receive medical treatment for his knife wound. Francois attempted to interview the defendant, but the defendant indicated that he did not wish to speak to Francois at that time. The defendant informed Francois, however, that he would contact Francois when he was ready to talk.

The following day, October 2, 2016, at approximately 10:25 a.m., McCafferty and [*6]Detective Janet Pena attempted to interview Rolanso Lexune at Kings County Hospital.[FN16] The defendant acknowledged the detectives, but otherwise refused to speak to them. The detectives, therefore, left the hospital. A police officer remained behind to guard the defendant, in compliance with NYPD policy.[FN17] Sometime later, that guarding officer contacted Pena and told her that the defendant wanted to talk to the Creole speaking officer. Pena contacted Francois. At approximately 1:50 p.m., Pena, McCafferty, and Francois met with the defendant, who was still in the emergency room.[FN18]

Prior to speaking to the defendant, Francois provided the defendant with Miranda warnings that Francois read from a pre-printed form.[FN19] The defendant waived the Miranda warnings, telling Francois, "I want to talk." The entirety of that conversation was recorded on video.[FN20] After several minutes of conversation, the video was paused, as the defendant was transferred by hospital staff from the emergency room to an in-patient room. Approximately fifteen to twenty minutes later, when the defendant was settled into an in-patient room, Francois reminded the defendant that the Miranda warnings he provided still applied and resumed the interview. Several minutes later, the camera stopped recording for a few seconds. Francois, not realizing that the camera had stopped, continued to speak with the defendant. Once the camera resumed recording, Francois again reminded the defendant that the Miranda warnings still applied, and the defendant then continued to answer Francois's questions.[FN21] After some time, the defendant informed Francois that he needed to use the bathroom. The detectives left the room to [*7]provide the defendant with some privacy. When the detectives returned to the room, Francois for a third time reminded the defendant that the Miranda warnings he provided still applied. The defendant then continued to answer Francois's questions.

The defendant appeared to be awake, alert, and oriented in his hospital bed. He was neither groggy nor sleepy. Francois testified that he had no trouble communicating with the defendant as they "speak the same language." While Pena does not speak Creole, she testified that the defendant spoke in a "normal" "clear" voice. Although Francois did not know the extent of the defendant's injury, the defendant did not appear to be in any pain or discomfort.[FN22] Pena, however, had asked the defendant's doctor about the defendant's wound. The doctor informed her that it was not serious and that the defendant needed only "a few stitches." The defendant was not given any pills or other medicine to take while the detectives were with him, and he did not appear to be medicated or under the influence of any substance.

Throughout the interview, Francois spoke with the defendant in a calm, polite, non-confrontational manner, in both Creole and accented English. While Francois's voice is deep and rather distinctive, he never raised his voice. The defendant, although rather soft-spoken, responded appropriately, often providing lengthy responses throughout the interview. Francois paused after each response to take notes. The defendant was not threatened or made any promises in exchange for his statement. He did not hesitate or indicate at any point that he wanted to stop speaking to Francois. At no time did the defendant ask for an attorney or ask to speak with an attorney, in fact, the only person he asked to speak with was Detective Francois, the Creole speaking detective.

Shanta Buckley testified that she knew Daneisha Smith, the decedent, as they were co-workers at a cell phone store located at 2184 Bedford Avenue in Brooklyn — the scene of the murder. They had worked together for approximately three months when Buckley arrived at work on October 1, 2016, to find Smith unresponsive on the floor covered in blood.

Buckley explained that about two weeks before Smith's murder, she saw a man outside of the store, who Smith explained was her fiancé. Buckley described the front of the store — glass with posters, and other items posted on it. On that day, two weeks before the murder, she saw the man peering through the glass into the store. Smith appeared to have seen him as well, as she walked outside to speak to him. Buckley said that she saw the man for about twenty seconds, but did not look at him from head to toe. Nothing was obstructing her view of the man. While it was somewhat dark outside, the store's neon sign was on, and that provided additional lighting.

Buckely testified that she had seen the man on a previous occasion, but could not recall precisely when that had taken place. On that previous occasion, she was in the back room of the store either sending a fax or making a photocopy. She looked at the fifty-inch television that displays panels with live images from the video surveillance cameras that are located throughout the store. On one panel of the television, she saw a man in front of the store, peering through the glass into the store. She saw the man for approximately ten seconds, and stared at him for about two or three seconds. Buckley indicated it was the same man that she saw again two weeks [*8]before the murder — the man that Smith described as her fiancé.[FN23]

On October 1, 2016, police officers showed Buckley a picture of the man that they believed she had observed on those two prior occasions outside of the cell phone store, the defendant. Buckley informed the officers that the picture depicted the man that she had observed on those two prior occasions — Smith's fiancé, although she did not remember him having that much facial hair.

The Defendant's Case

The defendant testified that on October 1, 2016, he lived with his wife and four children at 1419 New York Avenue, apartment 1F, in Brooklyn. The defendant had been living in that apartment for six or seven years, and all of his neighbors knew that he lived there with his wife and four children. At approximately 6:00 p.m. on October 1st, he was home with his wife and four children when he heard knocking on the apartment door. The defendant assumed that it was the children who lived next door and, therefore, did not open the door. The defendant's wife asked him who was banging on the door and he told her it was just some neighborhood children. As the knocking continued, the defendant looked out of the peephole and saw police officers standing in front of the door. He told his wife that he had no business with the police and that if the police needed him, they would leave a note or a business card, and he would contact them later at the precinct. The defendant further told his wife that the police were likely there about Daneisha, with whom, he explained, he had had "a problem." The defendant never told his wife or children to go into the bedroom. The defendant then heard banging and some kind of tool being used to unscrew the door, which had three locks. Someone kicked the door and the door flew open. Several police officers, all with weapons drawn, entered the apartment and ordered the defendant to put his hands up. The defendant, who was sitting on the couch, refused. The officers told the defendant to put his hands up or they would shoot him. The defendant told the officers to go ahead and shoot him as they had no business coming into his apartment and ordering him to put his hands up. One of the officers dragged the defendant to the floor, put a foot into his back, and handcuffed him. Other officers went into the bedroom where they looked through furniture and pulled the mattress off the bed. They then went into the kitchen where they opened cabinets. One of the officers took the defendant's red bag, put a knife in the bag, and then dropped the bag and its contents on the floor.[FN24] The defendant asked what the officer was doing and the officer told him to shut up. The defendant told the officer that he should shut up as the officer had no warrant for him. The officer then took out his cell phone and made a call. The defendant told the officers that he did not do anything to anybody and did not touch anybody. The officers told the defendant's wife and children to leave. The police took three cell phones from the defendant's apartment — one of those phones was Daneisha Smith's, and it had been in the apartment for eight or nine months.

The defendant testified that he did not have a knife when the officers entered his [*9]apartment, and asked to be shown his fingerprints on the knife. He explained that he did not know how he was wounded or from where he got the stab wound — he did not stab himself. The defendant stated that he did not have the wound when he was home, but, somehow, did have it later. He described the wound as being a small cut at the top of his belly, which required some stitches.

The defendant testified that he remembered the police coming to see him at the hospital, but denied speaking to them.[FN25] Additionally, the defendant testified that he had no memory of the video recorded statement as he must have been on medication — he had been given a pain killer to swallow by the doctor and something had been put in his IV. The defendant stated that he did not know what he was saying during the statement, as he was medicated.

The defendant stated that he and the decedent, Daneisha Smith, had broken up eight months before she was murdered, and he had not seen her since except, perhaps, driving by her in a car. He knew that she worked at a store in Canarsie, but had never been to that store. The defendant denied that he had previously assaulted Smith or taken her cell phone. According to the defendant, Smith spoke a little Creole, but when the defendant spoke to her in English, she told him to speak instead in Creole so that she could learn the language. The defendant indicated that he did not know Smith's sister Althea, and had only spoken to her once or twice to say hello, but then said that he did attend her wedding. The defendant testified that he had broken up with Smith as she wanted to get married, but he did not want to break up his marriage. The defendant denied that the individual in the video surveillance recordings of the murder was him.

Conclusions of Law

The Court credits the testimony of the People's six witnesses, but does not credit the defendant's testimony.

Dunaway

The People have met their burden of demonstrating that the police had probable cause for the defendant's arrest. Of course, "[p]robable cause does not require proof to a mathematical certainty, or proof beyond a reasonable doubt." People v. Mercado, 68 NY2d 874, 877 (1986). Rather, it must be "more probable than not that a crime has taken place and that the one arrested is its perpetrator." People v. Carrasquillo, 54 NY2d 248, 254 (1981).

In the instant matter, Shanta Buckley arrived at work on October 1, 2016 to find her co-worker, Daneisha Smith, unresponsive on the floor and covered in blood. Detectives from the Brooklyn South Homicide Squad were quickly summoned to the scene — a cell phone store located at 2184 Bedford Avenue in Brooklyn. The detectives learned soon thereafter that Smith's murder had been captured in its entirety by surveillance cameras located throughout the store. They watched that surveillance footage — some forty-five minutes of Smith struggling against a male assailant until the man finally subdued her and choked the life from her. With the still photographs from those recordings in hand, detectives interviewed Smith's sister who confirmed that the murdered woman was her sister, Daneisha, and that the murderer was [*10]Daneisha's boyfriend, Rolanso Lexune — the defendant.[FN26] See generally People v.Chipp, 75 NY2d 327 (1990). As the foregoing makes plain, the detectives had probable cause to believe that the defendant was responsible for Smith's murder. See e.g. People v. Young, 152 AD3d 981 (3d Dept. 2017).

Payton

Of course, it is a fundamental principle of law that, absent certain exceptions, the police may not enter an individual's home to make a warrantless arrest. Payton v. New York, 445 U.S. 573 (1980); see also People v. Roe, 73 NY2d 1004 (1989). One such exception, exigency, imposes a heavy burden on the People to demonstrate that the circumstances surrounding an individual's arrest in the home were of such a nature that a warrantless arrest was justified. In determining whether exigent circumstances exist, a court must examine several factors, including, inter alia, whether police have probable cause to believe the suspect committed the crime, the gravity or violent nature of the offense with which the suspect is to be charged, whether the suspect is reasonably believed to be armed, whether police have reason to fear that the suspect is "about to commit another violent crime," People v. Levine, 174 AD2d 757, 759 (2d Dept. 1991), whether there is a reasonable inference that the suspect poses "a danger to any occupants," People v. Mason, 248 AD2d 751, 755 (3d Dept. 1998), whether police have reason to believe that the suspect is in the premises being entered, a likelihood that the suspect will escape if not swiftly apprehended, "to avert the threat of danger to police officers on the scene," People v. Funches, 89 NY2d 1005, 1007 (1997), and the peaceful circumstances of the entry, including the time of day that police enter the premises, People v. Cartier, 149 AD2d 524 (2d Dept. 1989). See generally People v. Glia, 226 AD2d 66 (1st Dept. 1996); People v. Rajnauth, 253 AD2d 444 (2d Dept. 1998). The aforementioned factors are, however, "illustrative," People v. Paulino, 131 AD3d 65, 69 (1st Dept. 2015), and "do not prescribe a rigid formula," People v. Williams, 181 AD2d 474, 476 (1st Dept. 1992). Indeed, those factors are "not exhaustive," so that the presence or absence of any one factor is not conclusive. People v. Cloud, 168 AD2d 91, 94 (1st Dept. 1991) (internal citations omitted); see People v. Green, 182 AD2d 704 (2d Dept. 1992). Notwithstanding, those factors must be viewed through the larger prism of reasonableness — reasonableness being the touchstone of any Fourth Amendment analysis. See People v. Garvin, 30 NY3d 174 (2017) (internal citations omitted); see also People v. Molnar, 98 NY2d 328 (2002). In the instant matter, the People have conclusively demonstrated both that exigent circumstances justified the warrantless arrest of the defendant in his home, and that the actions of the police officers involved were, at every turn, reasonable.

To begin, and as discussed infra, the police had probable cause to arrest the defendant for Daneisha Smith's murder. Indeed, the video surveillance recordings located throughout Smith's place of business — the cell phone store — captured the entirety of her murder on camera. And so, when Smith's sister confirmed that the man who had strangled her sister to death was her sister's boyfriend, Rolanso Lexune — the defendant — the police unquestionably possessed probable [*11]cause for his arrest.

Moreover, it is undisputed that the offense for which the defendant was sought constituted both a grave and violent offense, measured by any standard. The video surveillance recordings speak volumes in that regard. It bears repeating, Daneisha Smith fought for her life for some forty-five minutes, while her killer, alleged to be the defendant, choked, body-slammed, dragged, and stabbed her in the face with shards of glass, before finally strangling her to death with his bare hands. While those shards of glass do not a per se weapon make, it was not unreasonable for investigating officers to believe that the killer, alleged to be the defendant, would once again arm himself with whatever dangerous instrument lay close at hand. See People v. Hill, 70 AD3d 1487 (4th Dept. 2010).

What is more, the investigating officers had reason to fear that the killer was dangerously close to committing an additional violent offense. Indeed, the detectives watched as the defendant allegedly attacked and manhandled Daneisha Smith, his purported girlfriend, as she bravely fought for her life. Not satisfied with merely beating and subduing her, he then straddled Smith and strangled her to death with his bare hands. Although he then calmly pulled a hood over his head and walked away, whether his rage had dissipated with Smith's death was entirely uncertain. And, the defendant's alleged history of violence against Smith, was troubling. So, too, Smith was not the only intimate partner that the defendant had allegedly abused. Detectives learned that the defendant had allegedly assaulted his wife previously — she had filed a Domestic Incident Report against him. See generally People v. Correa, 55 AD3d 1380 (4th Dept. 2008). Fresh from having allegedly strangled Smith with his bare hands on video, and armed with an alleged history of raining down violence on his intimate partners, the defendant likely knew full well that the police would be hot on his heels.[FN27] So, when detectives learned that the defendant lived with his wife and four small children in an apartment just five minutes away from the cell phone store/scene of the murder, it was neither illogical nor unreasonable to conclude that the defendant, behind the closed door of his apartment, was possibly primed for further violence. See generally People v. Rosario, 179 AD2d 442 (1st Dept. 1992); People v. Cloud, 168 AD2d 91 (1st Dept. 1991).[FN28] Notably, the first detectives on the scene had heard the sounds of children coming from inside of the apartment. Ominously, however, those sounds ceased at some point after the detectives had knocked on the door and announced their presence. Thus, abandoning their efforts to seek an arrest warrant, could have posed no small risk the defendant's wife and four small children. See People v. Pollard, 304 AD2d 476 (1st Dept. 2003).

While neither the defendant nor his wife then voluntarily opened the door to their shared home, that fact alone does not a Payton violation make. Indeed, the detectives' entry into the apartment was far from explosive, and, by all accounts unforeseen and unintended. To be clear, the detectives, demonstrating remarkable patience and restraint, attempted to coax the defendant from the apartment — they knocked repeatedly, called the defendant's name, interviewed neighbors, and peered into the window — in an effort to avoid a forced entry. See People v. [*12]Cloud, 168 AD2d 91 (1st Dept. 1991).[FN29] When that approach proved unsuccessful, and the sounds of the children ceased, they endeavored to make more noise, in an effort to jolt the defendant from the apartment and avoid any further violence. And, when the door swung open after a single swift kick at approximately 6:00 p.m., the detectives did not barrel through it en masse. [FN30] Instead, they paused and listened. And, when they heard children crying, and, then, what sounded terrifyingly close to someone being stabbed, it was only then that the detectives finally entered the apartment, guns drawn, one at a time. Met with the defendant sitting on the couch, bloodied, with a self-inflicted stab wound, one detective immediately rendered aid while another detective called for an ambulance. Then a detective sought out the defendant's wife and children, picked up one child, took another child by the hand, and directed them all not to look at what was happening in their living room.

While a cursory review of the facts in this case, at first blush, may appear to represent a quintessential Payton violation, it was not. Of course, the touchstone of any Payton analysis is reasonableness. When considered through that prism — the killer's murderous rage captured on video, the identification of the defendant as the killer, his opportunistic use of a dangerous instrument interspersed with his strangulation of Daneisha Smith, the defendant's alleged history of domestic violence, and the presence of five additional potential victims in the defendant's home, four of whom under the age of ten — the detectives believed, reasonably so, that exigency warranted, and in fact, demanded, their action. And, yet, when that front door popped open, the detectives remained remarkably restrained, finally entering only when it appeared almost certain that someone inside of the apartment had indeed been harmed, and was in need of assistance. The foregoing makes plain that exigent circumstances justified the warrantless arrest of the defendant in his home, and that the actions of the detectives involved were reasonable.

Huntley

The defendant moves to suppress a post-Miranda video recorded statement as, he contends, that statement was involuntarily made. To the contrary, the People have met their burden of proving beyond a reasonable doubt that the defendant's post-Miranda statement was freely, knowingly, and voluntarily made. See People v. Huntley, 15 NY2d 71 (1965).

The hearing testimony, together with the video recorded statement, establishes that the defendant was advised of his Miranda rights, in both English and his native language, Creole. See Miranda v. Arizona, 384 U.S. 436 (1966); People v. Anderson, 146 AD2d 638 (2d Dept. 1989).[FN31] The hearing evidence further establishes that the defendant's waiver of those rights was knowing, voluntary and intelligent. See People v. Warren, 2 AD3d 1317 (4th Dept. 2003); People v. Rivas, 175 AD2d 186 (2d Dept. 1991); People v. Stewart, 159 AD2d 247 (1st Dept. [*13]1990). Additionally, there is no evidence that the defendant was threatened, or promised anything in exchange for his statement. In fact, it was the defendant who requested that Detective Francois return to the hospital, and, while being administered the Miranda rights, he unequivocally told Francois that he wanted to talk.

Despite the foregoing, the defendant contends that the Miranda rights provided were inadequate, and that his waiver of those rights was defective. Of course, a police officer need not recite "a ritualistic formula," so long as the words used to convey Miranda rights provide the requisite information. People v. Jordan, 110 AD2d 855 (2d Dept. 1985) (internal citations omitted); see also People v. Thomches, 172 AD2d 786 (2d Dept. 1991). Here, the defendant was informed in English and Creole, his native language, that he had the right to remain silent and refuse to answer questions, that anything he said could be used against him in a court of law, that he had the right to consult an attorney before speaking to the police, and to have an attorney present during any questioning then or in the future, that if he could not afford an attorney, one would be provided to him, and that if he did not have an attorney available to him at the time, he had the right to remain silent until he had had an opportunity to consult an attorney. That recitation of the Miranda rights sufficiently advised the defendant of those rights. See People v. Lewis, 163 AD2d 328 (2d Dept. 1990); People v. Evans, 162 AD2d 701 (2d Dept. 1990). While the defendant indicated several times that he did not understand the rights as they were given, Detective Francois repeated the rights and provided further explanation, and did not move on to the next right until the defendant had indicated that he understood. See People v. Valverde, 13 AD3d 658 (2d Dept. 2004); People v. Spoor, 148 AD3d 1795 (4th Dept. 2017).

Additionally, the defendant contends that his medical condition, and an unidentified pill, prevented him from freely, knowingly, and voluntarily waiving the Miranda rights. The defendant's contention, however, is belied by the video and the testimony of the detectives present at the time of the interview, including a conversation had with the defendant's doctor, and their own observations of the defendant throughout. Indeed, on the video, he appears to be awake and alert and does not appear to be either groggy or sleepy. See People v. Torres, 220 AD2d 785 (2d Dept. 1995). So, too, the defendant does not appear to be in discomfort or pain. See People v. Perkins, 177 AD2d 720 (2d Dept. 1991); People v. Pearson, 106 AD2d 588 (2d Dept. 1984). In fact, the defendant appears to be comfortable throughout. See People v. Pearce, 283 AD2d 1007 (1st Dept. 2001). He actively engaged in a conversation with Francois, often providing lengthy answers that were responsive to the questions posed to him. Additionally, Detective Pena testified that she had conferred with his doctor, and learned that the knife wound was not serious. See People v. DelRosario, 210 AD2d 72 (1st Dept. 1994). And, throughout the video recorded statement, the defendant was not administered pills or any medication by medical personnel. See People v. Butler, 175 AD2d 252 (2d Dept. 1991); People v. Bell, 131 AD2d 859 (2d Dept. 1987). Thus, the totality of the circumstances demonstrates that the defendant knowingly and intelligently waived the Miranda rights. See People v. Braithwaite, 286 AD2d 507 (2d Dept. 2001); People v. Rodriguez, 231 AD2d 560 (2d Dept. 1996); People v. Nieves, 205 AD2d 173 (1st Dept. 1994); People v. Harrington, 163 AD2d 327 (2d Dept. 1990); People v. Eastman, 114 AD2d 509 (2d Dept. 1985).

Finally, the defendant contends that he should have been provided with Miranda warnings a second time, when the interview was paused for approximately twenty minutes so that he could be transferred from the emergency room to an in-patient hospital room. Of course, Miranda warnings need not be repeated so long as an individual remains in continuous custody [*14]and the questioning resumes within a reasonable time period. See generally People v. Legere, 81 AD3d 746 (2d Dept. 2011); People v. Holland, 268 AD2d 536 (2d Dept. 2000); People v. Thomas, 233 AD2d 347 (2d Dept. 1996); People v. Glinsman, 107 AD2d 710 (2d Dept. 1985). Here, the defendant was never released from police custody, rather, he remained hospitalized under police guard. Moreover, the break between questioning, while medical personnel transferred the defendant to an in-patient hospital room, lasted no more than twenty minutes. Thus, Francois was not required to re-administer the Miranda warnings to the defendant. See e.g. People v. Pierre, 300 AD2d 324 (2d Dept. 2002); People v. Gauger, 268 AD2d 386 (1st Dept. 2000). Nevertheless, Francois thrice reminded the defendant of the Miranda rights over the course of the relatively brief interview. Accordingly, the defendant's motion to suppress that statement is denied.

Attenuation

The defendant further moves to suppress the post-Miranda video recorded statement as, he contends, that statement is fruit of the unlawful, Payton-violative arrest. While the Court finds that the warrantless arrest of the defendant in his home was justified, see discussion infra, the statement, nevertheless, was sufficiently attenuated from the defendant's arrest so that suppression is not required.

In determining whether a statement is sufficiently attenuated from an unlawful arrest, courts must consider several factors, including the time between the arrest and the statement, the presence or absence of intervening factors, and the purpose and flagrancy of any police misconduct. See New York v. Harris, 495 U.S. 14 (1990). Here, defendant was arrested inside his home at approximately 6:00 p.m. on October 1, 2016. He was then transported by ambulance to a hospital for treatment of a self-inflicted stab wound. There he remained over night and was interviewed by detectives the next day, October 2, 2016, at approximately 2:00 p.m. Thus, approximately twenty hours had passed between the defendant's arrest and the video recorded statement. See generally People v. Guevara-Carrero, 92 AD3d 693 (2d Dept. 2012). Additionally, the interview took place not at the location of the defendant's arrest, but at the hospital. See People v. Rong He, 156 AD3d 907 (1st Dept. 2017). Further, the defendant was provided with Miranda warnings, both in English and his native language, Creole, prior to providing the statement. See People v. Green, 182 AD2d 704 (2d Dept. 1992). Moreover, and as discussed in more detail infra, there is no reason to believe that the apprehending detectives acted in bad faith or made the warrantless arrest for a nefarious purpose. See generally People v. Bradford, 15 NY3d 329 (2010); see also People v. Mateo, 148 AD3d 7272 (2d Dept. 2017); People v. Harris, 63 AD3d 480 (1st Dept. 2009). Rather, faced with a volatile situation involving a domestic incident, the detectives responded to the rapidly unfolding circumstances in a reasonable manner. Accordingly, the statement was sufficiently attenuated and the defendant's motion to suppress that statement is denied.

Mapp

Red Bag, Knives, and Cell Phones

The defendant moves to suppress a red bag, knives, and cell phones that were recovered [*15]from his apartment pursuant to a search warrant.[FN32] As a preliminary matter, and as discussed, infra, exigent circumstances justified the warrantless arrest of the defendant in his home. Once inside the defendant's apartment, Detective McCafferty conducted a protective sweep, to ensure that no other individuals in the apartment posed a risk to the safety of the officers while they tended to the defendant and his wound. During that sweep, McCafferty observed a red bag that he believed to be the same bag that the killer was observed to be carrying at the time of the murder, as well as several knives and cell phones, and a search warrant was sought.[FN33] Accordingly, those items — the red bag, knives, and cell phones were lawfully seized by the police. See generally People v. Harris, 96 AD3d 502 (1st Dept. 2012); People v. Lasso-Reina, 305 AD2d 121 (1st Dept. 2003); People v. Andino, 256 AD2d 153 (1st Dept. 1998); People v. Williams, 181 AD2d 474 (1st Dept. 1992); People v. Green, 103 AD2d 362 (2d Dept. 1984).

Attenuation

While the Court finds that the warrantless arrest of the defendant in his home was justified, see discussion infra, the seizure of the red bag, knives, and cell phones, nevertheless, was sufficiently attenuated from the defendant's arrest so that suppression is not required. Indeed, there is no evidence to suggest that the police illegally entered the defendant's apartment for the purpose of seizing physical evidence. See In Re Leroy M., 16 NY3d 243 (2011). Accordingly, the defendant's motion to suppress the physical evidence on that ground is denied.

The Defendant's Clothing

The defendant moves to suppress items of clothing taken from him at the hospital following his arrest. While, under certain circumstances, an individual's clothing may be seized by the police, see e.g. People v. Grant, 94 AD3d 1139 (2d Dept. 2012); People v. Quinones, 247 AD2d 216 (1st Dept. 1998), the People here have failed to elicit sufficient evidence for this Court to determine the propriety of that seizure. Indeed, Detective McCafferty testified only that Detective Pena took the defendant's clothing from the hospital, and that he believed the clothing had been "underneath the bed that [the defendant] was in." McCafferty was also uncertain if the clothes were in some kind of container, indicating only that he believed them to be in a clear plastic bag. Moreover, Detective Pena's testimony was devoid of any reference to her seizure of the defendant's clothing. The People, therefore, have failed to demonstrate that the defendant's clothing was seized lawfully. See e.g. People v. Sanders, 26 NY3d 773 (2016); compare People v. Vargas, 181 AD2d 806 (2d Dept. 1992). Accordingly, the defendant's motion to suppress his clothing is granted.

Independent source

At the defendant's request, the Court conducted an independent source hearing to determine whether Shanta Buckley should be allowed to make an in-court identification of him. The defendant contended that any in-court identification of the defendant would be tainted, as investigating detectives had previously showed Buckley a photograph of him. As the People failed to prove by clear and convincing evidence that Buckley had a sufficient basis for an in-court identification, the People are precluded from asking her to make an in-court identification of the defendant.

The People must prove by clear and convincing evidence that a witness's identification is based on recollections independent of any improper identification procedure. See People v. Ballott, 20 NY2d 600 (1967). When determining whether a witness has a sufficient independent basis for making an in-court identification, a court must consider several factors, including, inter alia, the opportunity for the witness to view the individual, the witness's degree of attention, the accuracy of any prior description, the level of certainty demonstrated at any prior identification, and the time between the viewing and the identification. See People v. Williams, 222 AD2d 149 (1st Dept. 1996); People v. Foster, 200 AD2d 196 (1st Dept. 1994).

In the instant matter, the witness, Shanta Buckley, testified that she saw the man at issue on two different occasions in the months leading up to the murder of her co-worker, Daneisha Smith. On neither occasion did Buckley see the man up close. In fact, the first time, Buckley did not even see the man in person. Rather, on a date that she could not recall, the man was standing outside of the store peering into the front window of the showroom. Buckley was busy at the time, and glanced at a television screen displaying a live feed from the store's video surveillance cameras. She looked at the man on the television screen for approximately ten seconds, staring at him for only about two or three seconds. The next time that Buckley saw the man, she looked at him through the store window for approximately twenty seconds, but did not look at him from head to toe. To be sure, there was no evidence that Buckley had a reason to focus on and remember the man. Indeed, Buckley was never called on to provide a description of the man, and her ability to remember the man was never challenged prior to the detectives showing her a picture of the defendant. Moreover, when detectives showed Buckley a picture of the defendant, she told them that she believed the man was Smith's fiancé, but conceded that she did not recall the man that she twice observed outside of the store having as much facial hair as the person in the photograph. Accordingly, the People have failed to prove by clear and convincing evidence that Buckley had a sufficient basis for an in-court identification and, therefore, are precluded from asking Buckley to make an in-court identification of the defendant at trial. See People v. McNeil, 39 AD3d 206 (1st Dept. 2007); People v. Garcia, 255 AD2d 522 (2d Dept. 1998).

Conclusion

This constitutes the Decision and Order of this Court.

Dated: May 2, 2018

Brooklyn, New York

____________________________

J.S.C. Footnotes

Footnote 1:While an independent source hearing was not initially granted, at the defendant's request, this Court conducted said hearing. Additionally, as neither the People nor the defendant referenced the Dunaway portion of the hearing during argument, the Court later allowed them an opportunity to be heard. Both sides chose to rely on the record in that regard.

Footnote 2:McCafferty later observed Daneisha Smith's body at the Office of the Chief Medical Examiner, and was informed that the cause of death was strangulation.

Footnote 3:Photographs of the premises were entered into evidence at the hearing as People's Exhibit #s 1-7.

Footnote 4:The video surveillance recordings were entered into evidence at the hearing as People's Exhibit # 8 and were played in open court. The Court also viewed the video in Chambers. Notably, the recordings are of relative high quality and enable the viewer to discern, inter alia, the facial features of the individuals on the recordings.

Footnote 5:At the hearing, McCafferty identified the defendant as the man in the video surveillance recordings from 2184 Bedford Avenue. The defendant, however, contends that he is not the man in the video surveillance recordings, see defendant's hearing testimony, infra.

Footnote 6:At the hearing, Francois identified the defendant as the man captured on the video surveillance recordings strangling Daneisha Smith to death. The defendant, however, contends that he is not the man in the video surveillance recordings, see defendant's hearing testimony, infra.

Footnote 7:Two still photographs — one of the defendant, and one of Smith — were introduced into evidence at the hearing as People's Exhibit #s 23 and 24. Nevertheless, the defendant contends that he is not the man in the video surveillance recordings, see defendant's hearing testimony, infra.

Footnote 8:Habert testified that the detectives were "yelling," as they wanted the individuals inside of the apartment to hear them.

Footnote 9:Habert and McCafferty explained that they are familiar with that apartment building, having knocked on many doors in the building in the past. McCafferty described the doors as heavy, metal enclosed fire doors. After this door opened, McCafferty noticed that the area surrounding the deadbolt lock looked as though it had been broken — it appeared that a metal strip to secure the lock had been attached in an unsecure manner with just a few screws.

Footnote 10:At the hearing, Habert identified the defendant as the man he observed sitting on the couch inside of apartment 1F at 1419 New York Avenue.

Footnote 11:Habert later went to the neighbor's apartment to check on the defendant's four children. He told them that their father, who was at the hospital getting help, would be all right.

Footnote 12:Jeanine Beauvil testified that in 2016 she was a Child Protective Specialist with the New York City Administration for Children's Services. On October 1, 2016, she became involved in an investigation involving the Lexune family, residing at 1419 New York Avenue, apartment 1F, in Brooklyn. On October 3, 2016, Beauvil went to the family's apartment. Residing in that apartment were the defendant, his wife, Norma Lexune, and their four children, including nine-year-old Rolando Lexune, the eldest. Beauvil spoke to Rolando about what had happened in the family's home on October 1, 2016. Rolando told her that he was home with his mother, father, and three siblings, when he heard loud knocking on their apartment door. The knocking was accompanied by voices saying "police." The child's father told him, his mother, and his three siblings to go into the bedroom, located at the rear of the apartment. From inside the bedroom, Rolando could still hear the banging on the apartment door. He was scared, and he and his siblings were crying. Rolando heard his father running and he heard a loud noise. Shortly thereafter, police officers, who were escorting Rolando and his family from the apartment, told him close his eyes, but he did not do so, and saw his father sitting on the couch in the living room with blood all over his chest.

Footnote 13:Photographs of the apartment were entered into evidence at the hearing as People's Exhibit #s 9-19.

Footnote 14:Francois explained that he speaks Creole and French, in addition to English.

Footnote 15:Nevertheless, the defendant contends that he is not the man in the video surveillance recordings, see defendant's hearing testimony, infra.

Footnote 16:The People called Detective Pena as a rebuttal witness. Pena testified that she has been employed by the NYPD for approximately thirteen years and is currently assigned to the 61st Precinct Detective Squad. On October 1, 2016, she was assigned to investigate a homicide that had taken place at 2184 Bedford Avenue in Brooklyn. She, along with Detective McCafferty from Brooklyn South Homicide, were the lead detectives. After a search warrant had been issued on the morning of October 2, 2016, she requested that crime scene officers recover evidence from 1419 New York Avenue, apartment 1F in Brooklyn — Rolanso Lexune's home. Officer Ajuea Granville of the Crime Scene Unit went to the apartment and recovered several items — two knives from the living room, a red bag from the bedroom and three cell phones from on top of a dresser in the bedroom. Pena testified that the red bag did not have a knife in it. At the hearing, Pena identified the defendant as the man she and Detective McCafferty attempted to speak with on October 2, 2016 at Kings County Hospital.

Footnote 17:One of the defendant's hands was handcuffed to the hospital bed.

Footnote 18:At some point while McCafferty and Pena were at the hospital, Pena took the defendant's clothes from "underneath the bed" the defendant was in. The clothes, which may have been in a clear plastic bag, were later vouchered at the precinct.

Footnote 19:The Miranda warnings form was introduced into evidence at the hearing as People's Exhibit # 20.

Footnote 20:The recorded statement was introduced into evidence at the hearing as People's Exhibit # 22. The People also provided the Court with a certified transcript of that video, as the entirety of the interview was conducted in Creole.

Footnote 21:Francois testified that when the camera was not recording, the defendant had explained that on the day of the murder he was on his way to his sister's house, and that he was supposed to stop to pay a bill. The defendant added that the victim, Smith, had tried to poke him in the eye with a piece of metal, so he took that piece of metal from her.

Footnote 22:While an individual can be heard moaning in pain during the emergency room portion of the video, those moans come from another patient, not the defendant.

Footnote 23:At the hearing, Buckley identified the defendant as the man she had observed on two prior occasions outside of the cell phone store where she worked with Smith. The defendant, however, contends that he had never been to the cell phone store, see defendant's hearing testimony, infra.

Footnote 24:On cross examination, the defendant denied that the red bag in the photos of his apartment was his, but admitted ownership of the knives.

Footnote 25:The defendant did, however, indicate that he was the individual in the video recorded statement with the detectives.

Footnote 26:Smith's sister also told the detectives where the defendant could be found, and that he resided with his wife and four young children. The detectives then corroborated the information provided by Smith's sister, verifying, inter alia, the address she provided as the defendant's address. They also learned that the defendant had been arrested previously for allegedly assaulting Smith, and that the defendant had similarly allegedly assaulted his wife, with whom he was residing at the time of the murder.

Footnote 27:Indeed, several times over the forty-five minutes or so that the man spent killing Smith, he looked directly at the surveillance cameras.

Footnote 28:That the detectives lacked specific information that the defendant was present in the apartment does not foreclose a finding of exigency. See People v. Williams, 181 AD2d 474 (1st Dept. 1992).

Footnote 29:That the detectives did not immediately force open the defendant's apartment door does not foreclose a finding of exigency. See In Re Pablo C., 220 AD2d 235 (1st Dept. 1995).

Footnote 30:That the door was accidentally kicked open, warrants intense scrutiny by the Court, and having so scrutinized the evidence, the Court credits the testimony of the detectives who were present in that hallway.

Footnote 31:Notably, the hearing testimony leaves no doubt that the defendant speaks and understands some English. Nevertheless, and appropriately so, the defendant, whose native language is Creole, was provided with a Creole speaking detective.

Footnote 32:The defendant moved to controvert the search warrant on myriad grounds, and, the Honorable Matthew J. D'Emic, deferred resolution of that motion to this Court. Having now concluded that exigent circumstances justified the defendant's warrantless arrest inside his home, the defendant's motion to controvert the warrant in that regard and to suppress the physical evidence recovered as a result thereof, is denied.

Footnote 33:Having secured the safety of the occupants of the apartment, the detectives then sought a search warrant, rather than immediately seizing the potential physical evidence, thus underscoring the reasonableness of their actions.