| People v Salvodon |
| 2015 NY Slip Op 03570 [127 AD3d 1239] |
| April 29, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Clifton Salvodon, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Jenin Younes of counsel), for appellant, andappellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Nicoletta J. Caferri, William H. Branigan, and Adam Brody of counsel), forrespondent.
Appeal by the defendant from a judgment of Supreme Court, Queens County(McGann, J.), rendered June 18, 2012, convicting him of assault in the first degree,burglary in the first degree (two counts), robbery in the first degree, and criminalpossession of stolen property in the fifth degree, upon a jury verdict, and imposingsentence. The appeals brings up for review the denial, after a hearing, of that branch ofthe defendant's omnibus motion which was to suppress physical evidence andinformation obtained from his cell phone.
Ordered that the judgment is reversed, on the law and the facts, that branch of thedefendant's omnibus motion which was to suppress physical evidence and informationobtained from his cell phone is granted, and a new trial is ordered.
On the morning of November 20, 2007, two men brandishing guns entered a home inQueens and demanded money from the occupants of the home. The homeowner shot oneof the intruders, and the intruders fled. Prior to fleeing the home, a ring was taken from aguest of the home. The defendant was arrested and charged with crimes relating to thisincident, and he moved, inter alia, to suppress a ring and information obtained from hiscell phone, which were recovered by the police from his personal belongings while hewas being treated at Franklin Hospital Medical Center (hereinafter the hospital) for agunshot wound. The Supreme Court denied that branch of the defendant's motion, andwe reverse.
At the suppression hearing, a detective from the Nassau County Police Department(hereinafter the Nassau detective) testified that, on November 20, 2007, at approximately11:00 a.m., he heard a notification "go over the radio for . . . either. . . a burglary or robbery that occurred in the 105th Precinct" in Queens.Shortly thereafter, the Nassau detective received a phone call from police officers at thehospital indicating that a male was brought in with a gunshot wound. The Nassaudetective did not have any information indicating that the call from the hospital wasrelated to the incident being reported in the 105th Precinct. The Nassau detective went tothe hospital, and upon his arrival, he spoke to two police officers, who informed him thatthe name of the individual with the gunshot wound was Shakeem Solomon. Theseofficers had, in an opaque plastic bag, that [*2]individual's personal belongings, which included, amongother things, a silver ring with diamonds and a cell phone. The hospital personnel hadtaken the belongings from the individual, placed them in the bag, and given it to thepolice.
The Nassau detective testified that he tried to question the individual about theshooting while the individual was being wheeled to the operating room, but theindividual refused to answer any questions except to state that he had been robbed. TheNassau detective testified that he held onto the bag containing the individual's personalbelongings for the purpose of safeguarding it. Then, another Nassau County detective atthe hospital proceeded to remove the cell phone from the bag and began to "go through"it for the purpose of locating contact information for the individual's next of kin. Namesand numbers taken from the cell phone were relayed to another detective at the stationhouse. From this information, it was discovered the individual had lied about his name,and that the individual was the defendant, Clifton Salvodon.
The People also called a detective from the New York City Police Department's105th Precinct (hereinafter the Queens detective) to testify at the hearing. The Queensdetective testified that, on the evening of the incident, the Nassau detective showed himthe personal belongings that had been recovered from the defendant. The Queensdetective photographed the belongings with his cell phone and sent the image to anotherdetective at the 105th Precinct station house. The guest of the subject home whose ringhad been taken identified the ring in the photograph as belonging to him.
"On a motion by a defendant to suppress physical evidence, 'the People have theburden of going forward to show the legality of the police conduct in the firstinstance' " (People vSpann, 82 AD3d 1013, 1014 [2011], quoting People v Whitehurst, 25NY2d 389, 391 [1969]). Here, the People did not meet this burden. The People'scontention that the police had probable cause to search the bag containing the defendant'spersonal belongings because it contained evidence of a crime is without merit (see People v Alston, 122 AD3d934, 935 [2014]; see also People v Cook, 85 NY2d 928, 931 [1995]). Thedefendant had an expectation of privacy in his personal belongings despite the fact thathe was being treated at the hospital and his belongings had been taken by hospitalpersonnel and given to the police for the purpose of safeguarding them (see People vAlston, 122 AD3d at 935; see also Berger v New York, 388 US 41, 50[1967]). "[T]he fact that the [police] perceived the defendant to be a victim rather than asuspect did not strip the defendant of Fourth Amendment protection" (People vAlston, 122 AD3d at 935), regardless of the Nassau detective's testimony that the cellphone was searched for the purpose of finding next of kin information.
The People's contention that exigent circumstances to search the defendant'sbelongings existed was never advanced before the hearing court and, therefore, may notbe considered here (see People v Johnson, 64 NY2d 617, 619 n 2 [1984]; People v Thompson, 118AD3d 922, 924 [2014]; People v Hall, 35 AD3d 1171, 1172 [2006]).
Accordingly, that branch of the defendant's omnibus motion which was to suppressthe physical evidence and the information obtained from his cell phone should have beengranted. We further conclude that this error was not harmless beyond a reasonable doubt(see People v Harper, 100AD3d 772, 774 [2012]), as the evidence of the defendant's guilt, without referenceto the ring or the information obtained from the defendant's cell phone, was notoverwhelming. Accordingly, the judgment must be reversed, and a new trialordered.
The defendant's contention, raised in his pro se supplemental brief, that the grandjury proceeding was impaired because the homeowner gave perjured testimony is withoutmerit. During the grand jury proceedings, the homeowner testified that while thedefendant was in his home, he wrestled the defendant's gun away from him and used thatgun to shoot the defendant. However, during direct examination of the homeowner attrial, he testified that he shot the defendant with his own unlicensed gun, which he keptin his bedroom. During cross-examination, the homeowner admitted that he lied to thegrand jury about wrestling a gun away from the defendant. Contrary to the defendant'scontention, the indictment was sufficiently supported by competent evidence, and thefalse testimony concerning the identity of the owner of the gun used to shoot thedefendant was [*3]immaterial (see People v Johnson, 54AD3d 636, 636 [2008]; People v Davis, 256 AD2d 200, 201 [1998]; seealso People v Bryant, 234 AD2d 605, 605-606 [1996]). Moreover, there was nosuggestion that the prosecutor knew that the homeowner's testimony was false at the timeit was given (see People v Johnson, 54 AD3d at 636).
The defendant's remaining contention, raised in his pro se supplemental brief, thatthe Supreme Court improvidently exercised its discretion in denying his application for amissing witness charge, is without merit (see People v Savinon, 100 NY2d 192,197 [2003]; People v Kitching, 78 NY2d 532, 536 [1991]; People vGonzalez, 68 NY2d 424 [1986]). Leventhal, J.P., Hall, Austin and Roman, JJ.,concur.