| People v Riffas |
| 2014 NY Slip Op 01022 [114 AD3d 810] |
| February 13, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Derrick Riffas, Appellant. |
[Recalled and vacated, see 120 AD3d 1438.]
—[*1] Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andSolomon Neubort of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Firetog, J.), rendered September 9, 2009, convicting him of murder in the seconddegree, upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, after a hearing (Reichbach, J.), of that branch of the defendant's omnibus motionwhich was to suppress his statements to law enforcement officers and identificationtestimony.
Ordered that the judgment is reversed, on the law, that branch of the defendant'somnibus motion which was to suppress his statements to law enforcement officers andidentification testimony is granted, and a new trial is ordered.
The hearing court erred when it determined that the defendant's arrest did not violatehis rights under Payton v New York (445 US 573 [1980]). Here the policeknocked on the defendant's door at approximately 6:50 a.m. When the defendantanswered the door he appeared to be "half asleep," and was naked from the waist down.He only partially opened the door, was never in full view of the police, and never crossedthe threshold of his apartment. When the police directed the defendant to step fully intoview, the defendant instead attempted to shut the door, trapping a detective's arm as thedetective tried to keep the door from closing. After law enforcement officialssuccessfully pushed the door open, they pulled the defendant from the area behind thedoor into the public hallway where he was then arrested.
Under the discrete circumstances of this case, where the police officers crossed thethreshold into the defendant's apartment, pulled him into the hallway, and arrested himwithout a warrant, the defendant's Fourth Amendment rights were violated (seeid. at 590; People v Levan, 62 NY2d 139, 144-145 [1984]; People v Gonzales, 111 AD3d147 [2013], lv granted 22 NY3d 999 [2013]; People v Robert, 156AD2d 730 [1989]). Therefore, the defendant's post-arrest identification and statementsshould have been suppressed as fruit of the unlawful arrest (see People v Levan,62 NY2d at 146). Moreover, it cannot be said that the admission of the defendant'spost-arrest statements and identification were harmless (see People v Crimmins,36 NY2d 230, 237 [1975]; People v Copp, 107 AD3d 911, 912 [2013]; People v Cioffi, 105 AD3d971 [2013]).[*2]
The defendant's contentions regarding the jurycharge and the verdict sheet are without merit.
Accordingly, the judgment of conviction must be reversed and a new trial ordered.
In light of our determination, the defendant's remaining contentions have beenrendered academic. Dillon, J.P., Chambers, Austin and Roman, JJ., concur.