People v. Brown ( 1996 )

—Judgment, Supreme Court, New York County (Frederic Berman, J., at suppression hearing; Bonnie Wittner, J., at jury trial), rendered January 18, 1994, convicting defendant of attempted murder in the second degree, and sentencing him to a term of from 6 to 18 years, is affirmed.

Testimony educed at the suppression hearing and at trial reveals that on December 21, 1992, defendant Dwight Brown approached Armando Alequin for the purpose of buying crack cocaine and, in exchange for the narcotics, offered Alequin his beeper. Alequin then allegedly sold the beeper to his friend for $60, but told defendant he had sold it for $40 and gave defendant $40 worth of crack. On December 23, 1992, defendant, having discovered he had been cheated, began an argument with Alequin, after which Alequin and his friends beat defendant up. Defendant left, vowing to return.

At approximately 6:00 p.m. on that same date, defendant returned to the area and shot Alequin in the face and groin from a distance of three feet in front of several witnesses. Ale-quin was rushed to St. Luke’s Hospital, where he told Detective Wilfredo Morales that he knew his attacker, although he could not remember his name, but that he lived in Apartment 5C of a building which he described in sufficient detail to allow the police to determine its address.

Detectives Matos and his partner Detective Geis responded to the building and carefully checked out its layout and escape routes, although they did not go to Apartment 5C because they believed defendant to be "dangerous” and did not want to alert him to their presence. Lieutenant Pagan, the officers’ supervisor, then contacted the New York City Police Department’s Emergency Service Unit ("ESU”), which in turn dispatched a team of five officers.

At approximately 7:30 p.m., Detectives Matos and Geis proceeded to the rear of the building while Lieutenant Pagan and the five ESU officers knocked, or kicked, at the door of Apartment 5C. Defendant’s live-in companion, Terranna Davis, acknowledged the knock through a closed door and was told it was the police and that they wanted to talk to her about a shooting that occurred down the block. Davis subsequently opened the door a few inches and said she knew nothing about a shooting.

ESU Officer O’Neill looked inside the apartment through the partially opened door and saw defendant walk across the living room, lift up a small child, and then cross back to the other side of the room. Lieutenant Pagan repeated that he wished to speak to Davis about a shooting, at which point she walked over to the defendant, leaving the door wide open. The police, construing this as an invitation to enter the apartment and continue the conversation, did so.

Davis, realizing the police had entered the apartment behind her, began screaming for the officers to leave and demanded to know if they had a warrant. Lieutenant Pagan requested that Davis calm down and, approximately 30 seconds after they had entered, he directed the visibly armed ESU officers to leave the apartment, to which they complied. Davis’ testimony corroborates this.

Detective Matos then entered the apartment and saw Lieutenant Pagan talking to Davis and defendant, the latter of whom was holding a small child. In response to Davis’ questions concerning the reason for the police presence, Detective Matos explained that there had been a shooting nearby and that witnesses had described defendant. Detective Matos then asked defendant if he would come to the precinct to clarify the situation. Defendant was not restrained, given his rights, questioned, or threatened in any manner. Defendant agreed and said "I’ll get dressed”, and later accompanied the officers to the precinct. Defendant was subsequently identified in a lineup at the precinct and was then arrested.

On July 23, 1993, after all parties had submitted written memoranda of law and completed their oral arguments at a suppression hearing, Justice Berman found that Davis opened the door to the apartment and then walked away from it, and while the police entry may have been somewhat unusual, it was proper. Justice Berman also found that no arrest was made of defendant in his home, that the police left the apartment when they were told to do so (a fact corroborated by Davis, the lone defense witness), and that defendant proceeded to the police station voluntarily with the police, despite the fact that Davis told him not to go. The hearing court found that defendant was not in custody or in any way restrained and that no force was used.

It is well-settled law that the fact findings of a suppression court are entitled to great deference and will not be disturbed unless clearly erroneous (People v Prochilo, 41 NY2d 759, 761; People v Morales, 210 AD2d 173, lv denied 84 NY2d 1035). It has also been held that consent to enter a home may be established by conduct, as well as words (People v Satornino, 153 AD2d 595; People v Schof, 136 AD2d 578, lv denied 71 NY2d 1033; People v Davis, 120 AD2d 606, lv denied 68 NY2d 769). In the matter at bar, while the police may not have received express permission to enter the premises, Davis’ gesture of opening the door, leaving it wide open, and then walking away from it could certainly be interpreted by the police to consist of tacit approval for them to enter.

While we are aware that the ESU officers were heavily armed and wore various gear to protect themselves, it must be remembered that defendant was a suspect in a vicious, pointblank execution style shooting in front of a number of witnesses only an hour before, and the officers, who believed defendant was dangerous, were within their rights to protect themselves accordingly. We do not agree with the dissent that defendant was in custody and are unpersuaded by repeated referrals to machine guns (including make and model numbers, and barrel lengths), plans of attack and other military terminology as no one was "attacked”, no one was shot, much less riddled by machine gun bullets, and the officers left when asked. In fact, no guns had been leveled at anyone at any time inside the apartment. The dissent, in placing undue emphasis on the different police gear and the "plan of attack”, ignores the course of events which took place immediately after the police entry, and has, in effect, substituted its own conclusion based on selected facts over that of the suppression court, whose fact findings are entitled to great deference.

The evidence also supports the hearing court’s finding that defendant was not in custody, or under arrest in the apartment and that he voluntarily agreed to leave with the officers. Once the officers ascertained that Davis wanted them out of the apartment and saw that defendant was with his family and posed no danger, they left the apartment immediately upon request.

It was Davis who began to curse and yell at the officers. At that point Officer Pagan apologized to the couple and explained to them the reason why they were there and the armed presence of the ESU officers. Officer Matos then stated that if defendant would agree to accompany him to the ¡precinct, they would clarify the situation and, if he was not involved, they would drive him home. It is notable that Davis testified that she told defendant he did not have to go with the police, to which he replied, "Babe it’s all right”, and said “I’ll go because, you know, just leave it at that”. This further reinforces the court’s finding that defendant was aware that he was under no obligation to accompany the officers and that he voluntarily left the apartment (see, People v Nova, 198 AD2d 193, Iv denied 83 NY2d 808).

The facts presented amply support the findings of the hearing court, which concluded that the officers believed they had tacit approval to enter the apartment, that the police left when they were asked, that defendant was never placed in custody in the apartment, and that defendant voluntarily accompanied the police to the precinct.

Defendant’s claims of improper conduct by the prosecutor were not preserved for review by objections on the grounds now stated (People v Balls, 69 NY2d 641), and we decline to review them in the interest of justice. Concur—Kupferman, Nardelli and Tom, JJ.