DECISION AND ORDER Acombined Huntley/Dunaway hearing was conducted by the Court. The People have consented to the Dunaway hearing and a Huntley hearing with respect to one of the statements the defendant allegedly made. The People oppose the Huntley hearing as to one other statement which was made on the scene of the arrest arguing that the statement is not subject to Huntley analysis, but rather was a part of the res gestae. With respect to the hearing that the People have consented to, they oppose any substantive relief for the defendant. The Court makes the following findings of fact and conclusions of law.FINDINGS OF FACTThe Defendant, is charged with violating NYPL §§195.05 (Obstructing Governmental Administration in the 2nd Degree), a class A misdemeanor and 205.30 (Resisting Arrest), a class A misdemeanor as charged in the information.The sole witness called was Police Officer Jose Tabora. Officer Tabora has been a Police Officer for over eleven years and is currently assigned to the 121 precinct. He has been involved with numerous arrests for both Obstructing Governmental Administration and Resisting Arrest.On November 27, 2017 he was working with a partner and at approximately 1:25 a.m. they responded to a 911 call of a female and children getting punched at the call location of the upstairs apartment, 186 Netherlands Avenue, Staten Island, NY. The 911 call was made by the downstairs neighbors. Upon arrival, he observed a female arguing with a male and another female with the younger female cursing and acting belligerent to the other female and male. Officer Tabora proceeded to approach the younger female, Jennifer Glorioso, and she asked the Officers to follow her to her residence, the upstairs, second floor apartment to 186 Netherlands Avenue, to talk to her, which the police officers did. Mrs. Glorioso is the wife of the Defendant.The building is an attached house with stairs going up to a first-floor apartment which has an entrance door and there is another door leading to the second-floor apartment with stairs to get to the second-floor apartment. These stairs are part of the second-floor apartment. As the police officers were going upstairs, in the middle of the stairs, there was a male, identified as the defendant. The defendant was attempting to prevent the officers from going upstairs by approaching the officers and saying “get out of my house, get out of my house. I didn’t let you in. No one called you. No one called you.” The female was also on the stairs and the Defendant was telling her “you caused this. This is the reason, you are the reason why this is happening. You caused this. Get out of my house”. When the Defendant made these statements, he was not threatened, and the police did not have their guns drawn.As the police tried to make their way upstairs the defendant pushed Officer Tabora and he attempted to handcuff the defendant. The defendant, in response, began flailing his arms and resisted being handcuffed. Eventually the police were able to handcuff the Defendant and he was placed under arrest. During transport back to the precinct the Defendant told the officers that they took her side because she is white. At the time the Defendant made the statement during transport to the precinct, he was not being questioned, he was not threatened by the police, they did not have their guns drawn and had not read him Miranda warnings.CONCLUSIONS OF LAWThe Parties ContentionsThe Defendant argues that the statements should be suppressed because the police entered his home and arrested him without an arrest warrant in violation of Payton v. New York, 445 U.S. 573 (1980) and his statements were thus tainted by the illegal arrest. He also argues that his statements were obtained in violation of People v. Huntley and should be suppressed on this alternative ground. The People argue that the statements made at the time when the police were walking up the stairs to get to the second-floor apartment are res gestae statements and not subject to Huntley. Alternatively, the People argue that if the statements are subject to Huntley there was no violation since the defendant was not being interrogated when he gave the statements and was not in police custody. As to the statement made during transport of the defendant to the precinct, the People assert that there was no Huntley violating here either since the defendant was not being questioned. Lastly, the People argue that there is no Payton or Dunaway violation and that the Police had probable cause to arrest the defendant and did not require a search warrant under the circumstances.The Underlying ArrestUnder Payton v. New York, 445 U.S. 573 (1980), the police ordinarily need a warrant to enter a person’s home absent exigent circumstances or consent. The police may enter a residence without a warrant when they obtain the voluntary consent of a person who has the requisite authority People v. Cosme, 48 N.Y.2d 286 (1979). “Where two or more individuals share a common right of access to or control of the property…any one of them has the authority to consent” to permitting law enforcement to enter Cosme, 48 N.Y.2d at 90.Here the police had the consent necessary to enter the subject apartment. Indeed, the police were invited in by Mrs. Glorioso, the Defendant’s wife. The police were responding to a 911 call and as part of that response were asked to go into the apartment to speak with Mrs. Glorioso. Under the circumstances presented here, the police had the requisite consent to enter the home.While attempting to enter the home to speak with Mrs. Glorioso, the police were met by the Defendant. He was preventing them from getting upstairs by putting himself physically in the way and trying to push the officer away. While preventing the police from entering the home, the defendant stated “get out of my house, get out of my house. I didn’t let you in. No one called you. No one called you.” At that time the police attempted to arrest the defendant and began flailing his arms and refused to be handcuffed.The Statements Made Prior to the Arrest“A statement is part of the res gestae when it is part of the transaction itself which is sought to be proved, or when it tends to qualify, explain or characterize the acts which it accompanies” (People v. McCullough, 73 A.D.2d 310, 313 (1st Dept. 1980)). Accordingly, when a defendant makes a statement during the criminal transaction, his statement will be admissible as part of the res gestae (People v. Wells, 133 A.D.2d 385 (2nd Dept. 1987)).Here the defendant’s statements made prior to his arrest were clearly part of the crimes he is charged with. His statements were made to the police to prevent them from entering the home and obstruct then from performing an official duty. These statements were made spontaneously and not as a result of any police questioning and are therefore admissible (People v. McFadden, 126 A.D.2d 970 (4th Dept. 1987)).Moreover these statements are not subject to suppression since the defendant was not in police custody when he made the statements and was not being interrogated by the police at the time.The Statement Made After the ArrestMiranda warnings are required when a defendant is in custody and being interrogated by the police (People v. Berkel, 97 A.D.3d 836 (2nd Dept. 2012)). Both elements must be present for Miranda warnings to be operable.As to the statement that the defendant made to the police that “they took her side because she is white” during transport to the precinct after he was arrested, suppression must be denied. The evidence at the hearing established that the defendant made this post arrest statement without being questioned by the police and without any coercion. Rather, this was a spontaneous statement and therefore admissible (People v. Dunn, 195 A.D.2d 240, 244 (2nd Dept. 1994)).The defendant’s remaining contention that his arrest was without probable cause is without merit.Accordingly, the defendant’s motion to suppress his statements is denied.This opinion constitutes the decision and order of this Court.Dated: October 9, 2018Staten Island, NY
