| People v Garvin |
| 2015 NY Slip Op 05695 [130 AD3d 644] |
| July 1, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Sean Garvin, Also Known as Anthony Garvin,Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Tammy Linn of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, and Danielle S. Fenn of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Lewis, J.), rendered September 20, 2012, convicting him of robbery in the third degree(four counts) and attempted robbery in the third degree, after a nonjury trial, andimposing sentence. The appeal brings up for review the denial, after a hearing, of thosebranches of the defendant's omnibus motion which were to suppress physical evidenceand his postarrest statements to law enforcement officials.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, his arrest did not violate his rights underPayton v New York (445 US 573 [1980]) and People v Levan (62 NY2d139, 144 [1984]). "The rule announced in Payton and applied in Levan isclear and easily understood: a person enjoys enhanced constitutional protection from awarrantless arrest in the interior of the home, but not on the threshold itself or theexterior" (People vGonzales, 111 AD3d 147, 153 [2013]; see Payton v New York, 445 USat 590; People v Reynoso, 2NY3d 820, 821 [2004]). As pertinent to this case, where the defendant lived in theupstairs apartment of a building containing two separate apartments, there is clearly a"distinction between homes and common areas such as halls and lobbies . . .which are not within an individual tenant's zone of privacy" (Mauceri v County ofSuffolk, 234 AD2d 350, 350-351 [1996], citing United States v Holland, 755F2d 253, 255-256 [2d Cir 1985]; see People v Funches, 89 NY2d 1005, 1007[1997]; People v Allen, 54AD3d 868, 869 [2008]).
Here, the hearing evidence demonstrated that the police entered the building thedefendant lived in through the front door. Thereafter, they passed through a vestibulebefore climbing the stairs to the defendant's upstairs apartment. One of the officersknocked on the closed apartment door, the defendant opened it, and the officereffectuated the arrest in the doorway. The arresting officer did not go inside thedefendant's apartment (cf. People v Gonzales, 111 AD3d at 148-153), or reach into pull the defendant out (cf.People v Riffas, 120 AD3d 1438 [2014]). Since the defendant was arrested atthe threshold of his apartment, after he "voluntarily emerged [and thereby] surrenderedthe enhanced constitutional protection of the home" (People v Gonzales, 111AD3d at 152), his warrantless arrest did not violate Payton and Levan(see People v Reynoso, 2 NY3d at 821; People v Hansen, 290 AD2d 47,52-53 [2002], affd 99 NY2d 339 [2003]). Accordingly, the hearing courtproperly [*2]denied those branches of the defendant'somnibus motion which were to suppress physical evidence and his postarrest statementsto law enforcement officials as the fruits of an illegal arrest (see generally Wong Sunv United States, 371 US 471, 488 [1963]).
The Supreme Court providently exercised its discretion in sentencing the defendantas a persistent felony offender (see Penal Law § 70.10 [2]; People v Boney, 119 AD3d701, 702 [2014]; People vDixon, 107 AD3d 735, 736 [2013]; People v Bazemore, 100 AD3d 915 [2012]). The court'sconclusion that the nature of the defendant's criminal conduct, his history, and hischaracter warranted extended incarceration and lifetime supervision is supported by therecord (see People v Dixon, 107 AD3d at 736; People v Bazemore, 100AD3d at 915).
The defendant's remaining contentions are without merit or need not be reached inlight of our determination. Skelos, J.P., Balkin and Maltese, JJ., concur.
Hall, J., dissents, and votes to reverse the judgment, on the law and the facts, grantthose branches of the defendant's omnibus motion which were to suppress physicalevidence and his postarrest statements to law enforcement officials, and order a new trial,with the following memorandum: "On a motion by a defendant to suppress physicalevidence, 'the People have the burden of going forward to show the legality of the policeconduct in the first instance' " (People v Spann, 82 AD3d 1013, 1014 [2011], quotingPeople v Whitehurst, 25 NY2d 389, 391 [1969]). Upon my review of the record,I find that the People failed to meet this burden. Accordingly, I respectfully dissent.
At the suppression hearing, the People failed to present sufficient evidence to show,in the first instance, that the police entry into the building where the defendant lived waslawful. There was no evidence presented as to how the police officers entered thebuilding. Although a police officer testified that the building was a "two-family house,"there was no testimony that the police officers believed the building to be a two-familyhouse prior to entering it. Furthermore, there was no evidence that the subject buildingwas in any way distinguishable from a one-family house. Based on my reading of thehearing testimony, it can be reasonably inferred that the subject police officer testifiedthat the building where the defendant lived was a "two-family house" based on hisobservations from inside the building, not from its outward appearance.
Under these circumstances, it is my opinion that the People failed to meet theirburden of going forward to show the legality of the police conduct in the first instance.That is, the People failed to show that the police entry into the building where thedefendant lived was lawful.
Accordingly, I find that those branches of the defendant's omnibus motion whichwere to suppress physical evidence and his postarrest statements to law enforcementofficials should have been granted (see People v Garriga, 189 AD2d 236 [1993]).I further conclude that the error described herein was not harmless beyond a reasonabledoubt (see People v Alston,122 AD3d 934, 936 [2014]).