Opinion
6078.
Decided June 12, 2008.
Janet Difiore, Westchester County District Attorney By: Joyce George, Ada, White Plains, NY.
Richard Ferrante, Esq. White Plains, NY, Attorney for Defendant .
Defendant Elwin Gentle ("Defendant" or "Gentle") is charged on a Superceding Misdemeanor Information with the A Misdemeanor of Aggravated Harassment in the Second Degree, the B Misdemeanor of Stalking in the Fourth Degree and the Violation of Harassment in the Second Degree (the "Information"). The fulcrum of this case is a series of allegedly threatening telephone messages allegedly left by Defendant on the cellular telephone of his former girlfriend, Patricia Muckle ("Muckle"). Defendant is also charged with calling Muckle's workplace and threatening to appear there. Gentle and Muckle have a daughter in common.
A Ventimiglia hearing was previously held, as well as an audibility hearing with respect to tape recorded cellular telephone messages. As a result of the audibility hearing, many of the allegedly threatening messages were found by the Court to be inaudible and therefore not admissible.
Defendant also requested, and the People consented to, a Huntley hearing with respect to certain statements made by Defendant to the arresting officer, Detective Formosa of the Westchester County Police including, most notably, a videotaped statement. In addition to seeking the exclusion of any statements made by Gentle, Defendant also seeks to exclude at trial the entire videotape or, in the alternative, to have the Court order certain portions of it redacted. The People oppose Defendant's efforts.
The Hearing
The Huntley hearing took place in January, 2008, with Detective Formosa as the People's sole witness. Defendant's videotaped statement was also viewed. Defendant did not testify and called no witnesses. Detective Formosa testified that he conducted an investigation concerning complaints made by Muckle against Defendant centering around certain allegedly harassing telephone calls/messages. The detective determined that there was probable cause to arrest Gentle, and he proceeded to Gentle's last known home address in the Bronx. Detective Formosa did not obtain an arrest warrant. Upon arriving at Gentle's apartment, Detective Formosa knocked on the door; Gentle answered, the detective identified himself, and Gentle invited him into the apartment's entry way. Detective Formosa testified that he then left the entry way, went into the shared hallway of the building and for "officer safety" reasons, asked Gentle to do the same. Defendant did so and was promptly placed under arrest. Gentle was in the common area of the hallway of his building, not inside his apartment, when he was arrested. Gentle was read the Miranda warnings and driven by Detective Formosa to the County Police station house.
While at the station house, Gentle was questioned by Detective Formosa — questioning that was recorded on videotape. The Court and counsel viewed the videotape during the course of the hearing. Defendant seeks to suppress all of his post-arrest statements to Detective Formosa — including the videotape — or in the alternative, to have certain portions of the tape redacted so as to exclude the portions of it that do not reflect Gentle's own statements or that are otherwise irrelevant or unduly prejudicial.
For the reasons set forth below, the Court finds that the People have sustained their burden of proving beyond a reasonable doubt the voluntariness of Gentle's statements and they are therefore admissible at trial. However, as discussed below, certain segments of the videotaped statement of Gentle must be redacted since they do not reflect statements made or adopted by Gentle himself.
Discussion
As far as the voluntariness of Defendant's statements is concerned, the sole witness at the hearing, Detective Formosa, testified at length concerning the investigation and arrest of Defendant, including testimony to the effect that Gentle was properly read his Miranda rights before he made any pertinent statements. Moreover, nothing in Detective's Fomasa's testimony suggests that Gentle's statements were involuntarily made for any other reason.
Gentle does not assert that Detective Formasa lacked probable cause to arrest him. Defendant does contend, however, that Detective Formosa violated the rule of Payton v. New York, 445 U.S. 573 (1980) by arresting Gentle at or near his home without first obtaining an arrest warrant, and on that basis seeks to have his statements suppressed. In Payton, the United States Supreme Court invalidated a warrantless arrest made within the defendant's home. The Court held that absent exigent circumstances, the decision of whether probable cause is present so as to authorize an "invasion of the sanctity of the home" to effect a search or arrest should be made "by a judicial officer, not by a policeman or government enforcement agent." As the Court reasoned, quoting the Second Circuit Court of Appeals:
"To be arrested in the home involves not only the invasion attendant to all arrests but also an invasion of the sanctity of the home. This is simply too substantial an invasion to allow without a warrant, at least in the absence of exigent circumstances, even when it is accomplished under statutory authority and when probable cause is clearly present." United States v. Reed, 572 F.2d 412, 423 (1978), cert. denied sub nom., Goldsmith v. United States, 439 U.S. 913. We find this reasoning to be persuasive and in accord with this Court's Fourth Amendment decisions".
Defendant argues that in the instant case, the police had more than adequate time to obtain an arrest warrant, and since no exigent circumstance was present, should have done so before proceeding to Gentle's home to arrest him. By failing to do so, the police ran afoul of Payton's protective principle that a person's home is a sanctuary of privacy that, absent a warrant, should remain inviolate unless emergent circumstances intervene. In a novel approach, Defendant does not ask the Court to invalidate Gentle's arrest; rather, Defendant seeks to suppress the statements allegedly made by him, however voluntary, as a sanction for the alleged improper police conduct. The People oppose Defendant's efforts.
The Court finds that no Payton violation occurred for each of two reasons. First, the uncontraverted testimony of Detective Formosa was that he did not barge into Gentle's apartment unannounced. Rather, he knocked on the door, properly identified himself, and Gentle then invited him inside. Moreover, as the detective testified, the actual arrest of Defendant took place outside of his apartment proper — that is, in the common hallway of Gentle's building. New York case law applying Payton is clear that even in the absence of exigent circumstances, a warrantless arrest made in proximity to even close proximity to a defendant's home will not rise to the level of a Payton violation.
For example, in People v. Shin, 200 AD2d 770, 771 (2d Dept. 1994), the Second Department held that a warrantless arrest made at the doorway of a defendant's home did not violate Payton. As the Court held:
"The defendant's contention that identification testimony and a statement made by him to the police should have been suppressed as the purported fruits of an unlawful arrest is without merit. The defendant's arrest at the doorway of his apartment did not violate Payton v. New York ( 445 US 573). The rule of Payton prohibits the police from crossing the threshold of a suspect's home to effect a warrantees arrest absent exigent circumstances or the suspect's consent to the entry of the police into his home (see, Payton v. New York, supra; People v. Minley, 68 NY2d 952). The doorway to a private residence has been held to be a public place for purposes of Fourth Amendment analysis, since the defendant has no legitimate expectation of privacy while standing there, exposed to public view." (Emphasis supplied).
See also, e.g., People v. Francis, 209 AD2d 539, 540 (2d Dept. 1994) ("The defendant's arrest at the doorway of his apartment did not violate Payton v. New York ( 445 US 573) . . . The doorway to a private residence has been held to be a public place for purposes of Fourth Amendment analysis, since the defendant has no legitimate expectation of privacy while standing there, exposed to public view"); People v. Kozlowski, 69 NY2d 761, 763 (1987) ("Absent evidence of intent to exclude the public, the entryway to a person's home offers implied permission to approach and knock on the front door.").
In the instant case, Gentle, as the defendant in Shin, was arrested a few feet outside the "doorway" of his apartment — an apartment into which he had, in any event, invited Detective Fomasa to enter. See People v. Kozlowski, 69 NY2d 761 (1987) (a consensual "entry into a suspect's home in order to make an arrest" does not run afoul of Payton). Accordingly, since no violation of Payton was established under the undisputed facts adduced at the hearing, no sanction against the People predicated upon such alleged violation is warranted on that basis.
Perhaps anticipating the Court's ruling with respect to whether a technical violation of Payton occurred Defendant raised an argument based more upon Detective Formosa's state of mind than his actual conduct. At the close of the Huntley hearing, Defendant asserted that Detective Formasa's stated reason for asking Gentle to step out of his apartment prior to effecting the arrest — for "officer safety" — was a mere pretext for avoiding a technical Payton violation. Accordingly, Gentle maintains, even though the letter of Payton may have been respected, its spirit was in some measure defiled and therefore the People should nonetheless be sanctioned by having Gentle's statements suppressed.
Defendant's effort fails as unsupported by the facts adduced at the hearing. Although there is some support for the proposition that the police may not, under pain of arrest or evidence suppression, physically yank a suspect from his home before effectuating a warrantees arrest (see People v. Fernandez, 158 Misc 2d 165, 166 (Sup.Ct., NY Co. 1993) ( Payton violation found when police impersonated parole officers performing a "residence check" to entice defendant to open the door to his apartment, then "reached into his apartment and pulled him out" to effect the arrest), this is manifestly not the case here. In the instant case, the uncontraverted testimony of Detective Formasa is that he knocked on the door to Gentle's apartment, Gentle opened the door and invited him in, then voluntarily stepped out into the public hallway when asked to do so. As such, this case beans a closer resemblance to the Court of Appeals case of People v. Minley, 68 NY2d 952, 953-954 (1986), where the court rejected a similar effort by defendant to suppress statements made after an arrest allegedly in violation of Payton. In Minley, even though the police, with guns drawn, directed defendant to come out of his house, his arrest did not transgress Payton since defendant's actions were deemed voluntary and therefore "neither the letter nor the spirit of the Payton rule was violated." As the Court held:
"The Supreme Court's holding in Payton v. New York ( 445 US 573) prohibits the police from crossing the threshold of a suspect's home to effect a warrantees arrest in the absence of exigent circumstances. The evil to which the rule is addressed is the unsupervised invasion of a citizen's privacy in his own home. Neither the letter nor the spirit of the Payton rule was violated here, where the police approached defendant's home, saw defendant, whom they did not know, peeking through a window and directed him to come out. We note that although there were several police officers present and at least one had his gun drawn, there is no indication that defendant was in any way threatened or that he had even seen the officer's gun before he exited his home and was placed under arrest. Since it is undisputed that the officers had probable cause for his arrest, there is no basis for suppressing the statements he subsequently made at the station house." (Emphasis supplied).
Since here, as in Minley, there is nothing in the record to indicate that Gentle was "in any way threatened" by Detective Formasa, no Payton violation occurred.Moreover, nothing in the record supports Defendant's unstated but apparent contention that the reason given by the detective for his request was not made in good faith. Indeed, a request by a police officer to a person who is about to be arrested that he first leave his apartment — an environment familiar to him, but foreign and possibly threatening to the police officer — is not so unreasonable that the Court would perforce infer an improper motive on the part of the officer for making it. And, whether the reason underlying Detective Formasa's request was pretextual or not, the undisputed fact remains that Gentle voluntarily adhered to it. The sanctity of Gentle's home — the protection of which is the overarching purpose of the Payton rule — thereby remained inviolate. Accordingly, the sanction recommended by Defendant proves at once unjustified and unnecessary.
The remaining issue with respect to the videotape — specifically, whether parts of it should be redacted before it is shown to the jury — is more problematic. Certain portions of the videotape pertain to past criminal conduct of Gentle which would not be admissible on the People's direct case. Other portions concern statements made by Detective Formasa which were neither consented to nor otherwise adopted by Gentle. Accordingly, the videotape may be introduced by the People in their main case, subject to the redaction of the following segments:
(1) Detective Fomasa's statements regarding the number of telephone calls that Gentle made to Muckle's workplace, which Gentle did not confirm on the tape.
(2) Detective Fomasa's statements with respect to Gentle's 1999 arrest for violating an Order of Protection, his 1990 guilty plea for unlawful imprisonment, and his alleged prior arrests for rape, sodomy and unlawful imprisonment.
(3) Gentle's denial that he told his and Muckle's child that "white people are devils," and not to have white friends.
The Court will be available to view the edited videotape before trial in the event that counsel are unable to stipulate to its revised content.
Accordingly, the People may introduce Defendant's statements at trial including the videotape, subject to the editing of the videotape as prescribed above..
The foregoing constitutes the Decision and Order of this Court. The parties are directed to appear on July 2, 2008 at 9:30 a.m. for a pre-trial conference as previously scheduled.