| People v Rong He |
| 2017 NY Slip Op 09172 [156 AD3d 907] |
| December 27, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Rong He, Appellant. |
Paul Skip Laisure, New York, NY (Anna Pervukhin of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Lori Glachmanof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (J. Goldberg,J.), rendered October 7, 2013, convicting him of assault in the second degree (two counts) andcriminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.The appeal brings up for review the denial, after a hearing, of that branch of the defendant'somnibus motion which was to suppress his statement to law enforcement officials.
Ordered that the judgment is affirmed.
Shortly after midnight on February 15, 2011, the defendant approached a man named TongZhang on the dance floor of a Brooklyn nightclub and stabbed him in the neck with a sharpobject. When a second man, Chun Zhang, attempted to prevent the defendant from fleeing, thedefendant slashed Chun Zhang in the face and stabbed him in the chest and arm. The defendantwas apprehended six months later, after Chun Zhang recognized him on a street in Brooklyn,followed him to the apartment building where he lived, and called 911. About 4
Prior to trial, the defendant moved, inter alia, to suppress his statement to the police.According to the testimony presented at the ensuing suppression hearing, at about 8:15 on theevening of August 15, 2011, Detective John Papio and his partner responded to a call advisingthem that a witness had seen the perpetrator of the nightclub incident walk into a building on52nd Street in Brooklyn. After initially gathering at a nearby street corner, Detective Papio, hispartner, another detective, and several uniformed officers proceeded to the 52nd Street building.Detective Papio described the building as a three-story attached residential building, with at leastone apartment on each floor. When Detective Papio arrived at the premises behind other policepersonnel, he entered a "shared area" of the building through an open door, and began to walkupstairs. From the second floor landing, he was able to see the defendant and the defendant's wifestanding outside the door to their third-floor apartment. A detective who was acting as aninterpreter walked the defendant over to Detective Papio, who walked the defendant out to thestreet. At about 8:30 p.m., one of the victims of the nightclub incident was driven to the scene,and identified the defendant as the [*2]perpetrator. The defendantwas then handcuffed and transported to the 68th Precinct station house.
Detective James Hemmer, who had been assigned to investigate the nightclub incident on theday it occurred, was called in to process the defendant's arrest between 8:30 and 9:00 p.m. WhenDetective Hemmer arrived at the station house at about 9:00 p.m., the defendant was in a holdingcell. At about 9:30 p.m., Detective Hemmer interviewed the victim Chun Zhang, who told himthat he had spotted the man who stabbed him leaving a store in Brooklyn. Chun Zhang followedthe man, saw him enter the building on 52nd Street, called 911, and then directed the police tothe building. A short time later, when the man was brought out of the building by the police,Chun Zhang identified him as the person who had stabbed him inside the nightclub.
At about 10:00 p.m., Detective Hemmer went to see the defendant, and asked him if he spokeEnglish. The defendant responded by shaking his head "no." Three hours later, at about 1:00a.m., Detective Hemmer spoke to the defendant inside a second-floor interview room with theassistance of Police Officer Victor Ko, who acted as a translator. At Detective Hemmer'sinstructions, Officer Ko read the defendant Miranda warnings (see Miranda vArizona, 384 US 436 [1966]), translating them from a Miranda rights sheet. Thedefendant initialed each right listed on the sheet, and signed on the bottom. After administeringthe warnings, Officer Ko asked the defendant if he knew why he was at the precinct, and thedefendant replied, "yes, I know it in my heart." The defendant then gave a statement in which heclaimed that Tong Zhang and his friends attacked him at the nightclub, and that he swung a sharpmetal object at them in self-defense, slashing one victim in the neck and another in the face.
At the conclusion of the hearing, the Supreme Court found that the defendant had beenarrested in the hallway in front of his apartment door, and that the hallway was part of his homebecause he had a reasonable expectation of privacy in that area. Accordingly, the courtdetermined that the police violated Payton v New York (445 US 573 [1980]) by arrestingthe defendant in the hallway without a warrant. However, the court concluded that suppression ofthe defendant's statement was not required because the statement was attenuated from his illegalarrest.
After a jury trial, the defendant was convicted of two counts of assault in the second degree,and criminal possession of a weapon in the fourth degree. On appeal he contends, inter alia, thathis statement to the police should have been suppressed because it was not sufficiently attenuatedfrom his illegal arrest to be purged of the taint created by the illegality. The People respond thatthe defendant was not illegally arrested in violation of Payton because the hallwayoutside of his apartment was not part of his home, and, in any event, the defendant's statementwas sufficiently attenuated to purge any taint.
Initially, we note that CPL 470.15 (1) bars this Court from affirming a judgment, sentence, ororder on a ground not decided adversely to the appellant by the trial court (see People v Concepcion, 17 NY3d192, 195 [2011]; People v LaFontaine, 92 NY2d 470, 473-474 [1998]). Thisprovision has been construed as "a legislative restriction on the Appellate Division's power toreview issues either decided in an appellant's favor, or not ruled upon, by the trial court"(People v LaFontaine, 92 NY2d at 474; see People v Ingram, 18 NY3d 948, 949 [2012]). Since theSupreme Court ruled in favor of the defendant on the issue of whether he was illegally arrested inviolation of Payton, we may not review that issue on the defendant's appeal (seePeople v Ingram, 18 NY3d at 949; People v Concepcion, 17 NY3d at 195-196;People v LaFontaine, 92 NY2d at 473-474).
The Fourth Amendment bars a warrantless arrest in a suspect's home, absent exigentcircumstances or consent (see Payton v New York, 445 US 573 [1980]; People v Mateo, 148 AD3d 727,728-729 [2017]). Under the New York State Constitution, "statements obtained from an accusedfollowing a Payton violation must be suppressed unless the taint resulting from theviolation has been attenuated" (People v Harris, 77 NY2d 434, 437 [1991]; see People v Jones, 2 NY3d 235,240 [2004]; People v Mateo, 148 AD3d at 729). The attenuation doctrine requires a courtto consider "the temporal proximity of the arrest and the confession, the presence of interveningcircumstances and, particularly, the purpose and flagrancy of the official misconduct" (Peoplev Conyers, 68 NY2d 982, 983 [1986]; see People v Bradford, 15 NY3d 329, 333 [2010]). "The postarrestadministration of Miranda [*3]warnings by the police isan important but not a conclusive factor in determining whether the confession was obtained byexploitation of the illegal arrest" (People v Conyers, 68 NY2d at 983, citing Brown vIllinois, 422 US 590, 603 [1975]; see People v Bradford, 15 NY3d at 334). "[T]herelevant factors will vary from case to case and each case must be individually considered on theparticular facts and circumstances presented" (People v Borges, 69 NY2d 1031, 1033[1987]).
Here, the Supreme Court's determination that the defendant's statement was attenuated fromhis illegal arrest is supported by the record. The defendant was not interviewed by the police untilapproximately 4
Contrary to the defendant's further contention, the People did not commit a Bradyviolation (see Brady v Maryland, 373 US 83 [1963]) by failing to disclose the contactinformation of potential witnesses (seePeople v Pacheco, 38 AD3d 686, 688 [2007]; People v Estrada, 1 AD3d 928, 929 [2003]). Eng, P.J., Roman andHinds-Radix, JJ., concur.
Hall, J., dissents, and votes to reverse the judgment, on the law and the facts, vacate thedetermination denying that branch of the defendant's omnibus motion which was to suppress hisstatement to law enforcement officials, and remit the matter to the Supreme Court, Kings County,for further proceedings in accordance with People v LaFontaine (92 NY2d 470, 474-475[1998]), with the following memorandum: I agree with my colleagues in the majority that thePeople did not commit a Brady violation (see Brady v Maryland, 373 US 83[1963]) by failing to disclose the contact information of potential witnesses. I also agree with mycolleagues that we are precluded from reviewing the issue of whether the defendant was illegallyarrested, as the Supreme Court decided this issue in favor of the defendant, who is the appellantin this case. Contrary to the conclusion of my colleagues, however, I believe that the court erredin determining that the causal connection between the illegal arrest and the defendant's statementwas sufficiently attenuated so as to purge the taint of the illegal arrest.
Cases that have found sufficient attenuation between an unlawful arrest and a custodialstatement have generally involved an intervening event, which could be deemed the precipitatingcause of the statement, other than: (1) the passage of several hours; (2) the fact that the statementwas elicited by a detective who was not one of the arresting officers; and (3) the fact thatMiranda warnings (see Miranda v Arizona, 384 US 436 [1966]) weregiven.
[*4] For example, in People v Bradford (15 NY3d 329,334 [2010]), the subject confession was made after the defendant was confronted with statementsof the victim and the victim's sister, which statements had been obtained independent of thedefendant's detention. And in People v Rogers (52 NY2d 527, 533 [1981]), thechallenged statements were made after the defendant was confronted with lawfully obtainedphysical evidence and after the defendant had a conversation with his brother, who was a policeofficer. Here, there was no such intervening event. The facts that Chun Zhang had recognized thedefendant on the street as the perpetrator, followed him to the 52nd Street building, and called911 were all known to the police prior to the arrest, and in fact, were the basis for the arrest. Ifurther submit that the showup identification that occurred immediately after the arrest cannot bedeemed an intervening event because the showup identification, which was conceded by thePeople to have been suggestive, flowed directly from the arrest. Under the circumstances, the factof the showup identification does not "justif[y] the conclusion that [the subsequent statement]was not the product of the illegal" arrest (id. at 533).
Without such an intervening event, courts have generally found insufficient attenuation topurge the taint of an illegal arrest (see Taylor v Alabama, 457 US 687, 691-692 [1982][finding insufficient attenuation between an illegal arrest and a confession even though: (1) sixhours had passed between the arrest and the confession; (2) the defendant had been givenMiranda warnings three times; and (3) the defendant was visited by his girlfriend and amale companion immediately before making the confession]; People v Harris, 77 NY2d434, 441 [1991]; People v Newson,155 AD3d 768 [2d Dept 2017] [finding insufficient attenuation notwithstanding: (1) thepassage of approximately nine hours between the arrest and the challenged statements; (2) thefact that the detective who elicited the challenged statements was not one of the arrestingofficers; and (3) the fact that Miranda warnings were given before the statements weremade]; People v Gundersen, 255 AD2d 454, 454-455 [1998] [finding insufficientattenuation between an illegal arrest and a statement where there were no significant interveningevents despite the passage of several hours between the arrest and the statement and despite thefact that Miranda warnings had been issued]).
Finally, contrary to the determination of my colleagues in the majority, I believe that thepolice misconduct identified by the Supreme Court was flagrant. The court's finding that thearrest was illegal was not based solely on the court's conclusion that the arrest was made in thedefendant's home in violation of Payton v New York (445 US 573 [1980]). The findingwas also based on its conclusion that, at the time of the arrest, the police lacked probable cause tobelieve that the defendant had committed a crime (see CPL 140.10; People v DeBour, 40 NY2d 210, 223 [1976]).
For the foregoing reasons, I vote to reverse the judgment appealed from and vacate thedetermination denying that branch of the defendant's omnibus motion which was to suppress hisstatement to law enforcement officials. In order to give the People an opportunity to seekreexamination of the issue of whether the arrest was unlawful, an issue that we cannot reach onthis appeal, I further vote to remit the matter to the Supreme Court, Kings County, for furtherproceedings in accordance with People v LaFontaine (92 NY2d 470, 474-475[1998]).