| People v Riffas |
| 2014 NY Slip Op 06333 [120 AD3d 1438] |
| September 24, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Derrick Riffas, Appellant. |
Pamela D. Hayes, New York, N.Y., for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andSolomon Neubort of counsel), for respondent.
Motion by the respondent for leave to reargue an appeal from a judgment of theSupreme Court, Kings County, rendered September 9, 2009, which was determined bydecision and order of this Court dated February 13, 2014.
Upon the papers filed in support of the motion and the papers filed in oppositionthereto, it is
Ordered that the motion is granted and, upon reargument, the decision and order ofthis Court dated February 13, 2014 (People v Riffas, 114 AD3d 810 [2014]), is recalled andvacated, and the following decision and order is substituted therefor:
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 those branches of the defendant's omnibusmotion which were to suppress his post-arrest statements to law enforcement officialsand evidence of a post-arrest lineup identification.
Ordered that the judgment is reversed, on the law, that branch of the defendant'smotion which was to suppress his post-arrest statements to law enforcement officials isgranted, and a new trial is ordered.
The hearing court erred in determining that the defendant's arrest did not violate hisrights under Payton v New York (445 US 573 [1980]). Here, the police knockedon the defendant's door at approximately 6:50 a.m. When the defendant answered thedoor he appeared to be "half asleep," and was naked from the waist down. He onlypartially opened the door, was never in full view of the police, and never crossed thethreshold 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.
[*2] Under the discrete circumstances of this case, wherethe police officers crossed the threshold into the defendant's apartment, pulled him intothe hallway, and arrested him without a warrant, the defendant's Fourth Amendmentrights were violated (see id. at 590; People v Levan, 62 NY2d 139,144-145 [1984]; People vGonzales, 111 AD3d 147 [2013]; People v Robert, 156 AD2d 730[1989]). While the Supreme Court properly denied that branch of the defendant'somnibus motion which was to suppress evidence of a post-arrest lineup identification (see People v Jones, 2 NY3d235 [2004]), it should have granted that branch of the motion which was to suppresshis post-arrest statements to law enforcement officials (id. at 242-244; Peoplev Harris, 77 NY2d 434 [1991]). Since the evidence of the defendant's guilt was notoverwhelming, and it cannot be said that there is no reasonable possibility that the errorin admitting the defendant's post-arrest statements into evidence might have contributedto the defendant's conviction, the error was not harmless beyond a reasonable doubt (see People v Hardy, 4 NY3d192, 198-199 [2005]; People v Crimmins, 36 NY2d 230, 240-241 [1975]; People v Cioffi, 105 AD3d971, 973 [2013]).
The defendant's contentions regarding the jury charge and the verdict sheet arewithout merit.
Accordingly, the judgment of conviction must be reversed and a new trialordered.
In light of our determination, the defendant's remaining contentions have beenrendered academic. Dillon, J.P., Chambers, Austin and Roman, JJ., concur.