The People, Respondent,v.Darrion B. Freeman, Appellant.

Brief

N.Y.March 21, 2017

SANDRA DOORLEY DISTRICT ATTORNEY TELEPHONE SK5·753-4334 FAX SKS-753-4692 OFFICE OF THE 1J.Bistrirt ~ttornep OF MONROE COUNTY SUITE832 EBENEZER WATTS BUILDING ROCHESTER, NEWYORK 14614 PERRY DUCKLES FIRST ASSISTANT DISTRICT ATTORNEY TIMOTHY L. PROSPERI SECOND ASSISTANT DISTRICT ATTORNEY November 30,2016 John P. Asiello Clerk of the Court New York State Court of Appeals 20 Eagle Street Albany NY 12207 Re: People v Freeman (Darrion), APL-2016-00182 Dear Mr. Asiello: The People hereby submit this letter brief in the above entitled action. At issue on appeal is whether defendant voluntarily consented to a search that uncovered marijuana and a weapon. Because there was record support for the lower court's determination, this Court should affirm the decision of the Appellate Division, Fourth Department (People v Mercado, 25 NY3d 936, 937 [20 15] ["The determinations regarding ... defendant's consent to a search ... involve mixed questions of law and fact"]). "Because voluntariness is a mixed question of law and fact, [this Court's] review is limited to deciding whether the Appellate Division's finding is supported by evidence in the record" (In re Jimmy D., 15 NY3d417, 423 [20 I 0]; see also People v Valerio, 95 NY2d 924 [2000]), "including any reasonable inferences drawn therefrom ... " (People. v Jin Cheng Lin, 26 NY3d 701, 719 [2016]). A divided panel of the Appellate Division, Fourth Department, affirmed defendant's conviction. The majority held, "[b]ased on the totality of the circumstances surrounding defendant's consent to enter his home, we conclude that the consent was voluntary" (People v Freeman, 141 AD3d 1164, 1165 [4th Dept 2016]). The majority went on, "[t]estimony at the suppression hearing established that, although defendant was in custody at the time he gave consent, he cooperated with the police and assisted them in gaining entry by indicating which of his keys opened the front door. Once inside the home, the police observed marihuana in plain view and immediately read defendant his Miranda rights. After defendant waived those rights, he voluntarily consented, both verbally and in writing, to a search of the premises" (id. [citations omitted]). The dissent at the Appellate Division would have reversed on the ground that defendant's consent was not voluntary, but was submission to "coercive police tactics" (id. at 1169 [Whalen, P .J ., and Troutman, J ., dissenting]). There is ample support in this record for the holding of the majority of the Appellate Division, Fourth Department. When defendant was asked for permission 2 to search the car he had been driving, defendant replied, "Yes. I don't have a problem with that" (Hearing Minutes [HM] I 0; cf People v Freeman at 1168 [dissent] ["The factors guiding our assessment of the voluntariness of defendant's consent include whether defendant was ... evasive or cooperative"]). Defendant further cooperated with police by consenting to entry into his house (HM 14 ["he also verbally pointed out both the key to the front door and the key to his specific room"]). Notably, defendant was not told that he was under arrest until after entry into the home, when the police saw marijuana in plain view (HM 14 ["I explained to him that he was under arrest on drug charges"]). Before this time, defendant was still "eligible to be issued an appearance ticket" (HM 13 ). Further examples of defendant's cooperation are his willingness to tell police he was on probation (HM 14 ln. 24 ), lack of evasiveness when asked to give his identification (HM I 0), agreeing to speak to police after being read his Miranda warnings (HM 17-18, 83-84), and signing a consent card for a search of his home (HM 21 ). Defendant was read his Miranda warnings before he gave consent to search the house (HM 15-16, 18-19; compare People v Tremblay, 77 AD2d 807 [4th Dept 1980]). 3 The fact that defendant was on probation reveals that he had previous experience with the criminal justice system (see Freeman at 1168 [dissent] ["The factors guiding our assessment of the voluntariness of defendant's consent include whether defendant was ... experienced in dealing with the police"]). Many of appellant's arguments, including references to news articles and scholarly journals, were not arguments that were presented at the hearing, and should not now be considered when determining whether defendant's consent was voluntary (see, e.g., Appellant's Letter Brief at 3 n 3). To the extent that appellant invites this Court to revisit the policy rationale behind the current consent-to- search framework, the People respectfully submit that this Court need not, and should not, do so (see Schneckloth v Bustamante, 412 US 218, 231-232 [ 1973] [" ... it would be thoroughly impractical to impose on the normal consent search the detailed requirements of an effective warning .... The circumstances that prompt the initial request to search may develop quickly or be a logical extension of investigative police questioning"]). There is support in the record for the Appellate Division's holding. This ends the inquiry (People v McFarlane, 21 NY3d 1034 [2013]). "The fact that the opposite conclusion was just as plausible ... involves inferences based on ... factual questions ... and does not provide a basis for [this Court] to conclude that the 4 lower courts erred as a matter of law" (People v Jin Cheng Lin, 26 NY3d 701, 726-727 [20 16]). The judgment of conviction should be affirmed. Respectfully submitted, SANDRA DOORLEY Monroe County District Attorney BY: ROBERT J. SHOEMAKER Assistant District Attorney Ebenezer Watts Building Suite 832 Rochester, NY I 4614 5 I STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, -vs- DARRJON FREEMAN, Defendant. STATE OF NEW YORK) COUNTY OF MONROE) SS: CITY OF ROCHESTER) AFFIDAVIT OF SERVICE BY MAIL Laurie Mastrocola , being duly sworn, deposes and says that deponent is not a party to this action, is over the age of eighteen ( 18) years and resides at Rochester, New York. That on the 2nd day ofDecember, 2016, deponent served one copy of a letter brief for Respondent upon James A. Hobbs, Assistant Public Defender, attorney for defendant in this action at 10 N. Fitzhugh Street, Rochester, New York 14614, by depositing a true copy of the same, enclosed in a postpaid properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Postal Service within the State ofNew York. Sworn to before me this 2nd day ofDecember, 2016. ,~d4~ NOARYPUBLIC ~i& ivl~cl/a. LAURIE MASTROCOLA Roxanne M. Emler Notary Public, State of New Yorlt 01EM6203185 qualified in Monroe County commission exoires Mar. 30.~7