People v. Gonzalez

DECISION Defendant Carlos Gonzalez was charged with two counts of criminal possession of a firearm (P.L.§265.01-b(1)) and related charges. On August 22, 2018, the court (Michels, J.) granted the defendant’s omnibus motion to the extent of ordering a Mapp/Dunaway/Payton hearing. From June 11, 2019 — June 21, 2019 this court conducted the hearing to determine the admissibility of the physical evidence attributed to the defendant. The issues in the hearing concern the NYPD’s response to a report of an “emotionally disturbed person.”¹FINDINGS OF FACTThe People called two witnesses, Police Officer Albert Moulier and Detective David Fekety. Officer Moulier has worked for the New York City Police Department (“NYPD”) for approximately thirteen years and has been assigned to the 48th precinct. On February 18, 2018, Officer Moulier was working as a patrol officer with his partner Sergeant Kim. Sometime between 3:00 and 3:15 a.m., he received a radio transmission of a violent “emotionally disturbed person” (EDP) inside apartment 5B at 2155 Daly Avenue in the Bronx. Officer Moulier testified that the dispatcher relayed to him that an unidentified female caller reported screaming and yelling, dogs barking, and possibly that her daughter was inside the apartment, scared and anxious to leave.The People introduced the Sprint event chronology report into evidence during the hearing; the ’911′ recording was not preserved although requested by the defense. Within the Sprint report, there is an entry at 3:18:51 on 2/18/2017, “EDP is banging and throwing stuff in the apt.” There are several other entries starting at 3:19:07 on the same date, “FC states, ‘she was adv when EDP has episode to call to PD. EDP is acting erratic. EDP has a dog can hear dog crying. EDP screaming and yelling.’”Within two to three minutes after receiving the transmission from the dispatcher, Officer Moulier arrived at the location and attempted to gain entry. Someone opened the front door of the building for the officers and Officer Moulier and his partner proceeded to apartment 5B. They knocked on the apartment door but there was no response. The officer continued to knock and asked if anyone could open the door so he could see of everyone was okay inside the apartment. After knocking on the door on and off for the next half hour, the officer heard a male voice from inside the apartment say: “Get out of here. We don’t need you. Everyone is all right.” The male continued to make similar statements in a loud and angry voice.Officer Moulier tried to persuade the man to open the door so that he could make sure everyone inside was safe. The man refused and continued to respond loudly and angrily. Officer Moulier did not hear any other voices, but based upon the information relayed in the radio transmission, he believed there were other people in the apartment. After many unsuccessful attempts to convince the man to open the door, at approximately 3:40 a.m., the officer called the Emergency Service Unit (ESU) to respond.At approximately 4:00 a.m., Detective Fekety, an eighteen year veteran, and his partner from ESU responded to the location. The detective first spoke with various officers on site, then put on equipment and proceeded to apartment 5B. Detective Fekety testified that he spoke with the duty captain on scene, who advised him that the situation was “a possibly barricaded emotionally disturbed person inside and possibly hostages.” Detective Fekety proceeded to direct the patrol officers to clear the area and then approached the door of apartment 5B. The detective heard muffled voices behind the door and the shuffling of feet. The detective knocked on the door and announced his presence. A female voice from inside told him to go away. The detective responded he could not just go away until he ascertained that everyone inside the apartment was safe. He spoke with the female for approximately twenty minutes, attempting to coax her to open the door and come outside. The detective testified that his primary purpose was to gain a peaceful entry for the safety of occupants. He indicated that he always tried to gain peaceful entry and avoid the use of force.The woman inside continued to urge the detective to leave and got “a little more agitated.” Detective Fekety then heard a second female’s voice from inside the apartment. After some time, one of the females eventually opened the door and asked if they could leave. The detective and his partner pushed past them into the apartment. The defendant and another male were also present. The ESU detectives conducted a sweep of the apartment to ensure that there were no other occupants, that no one was injured and that no one was being held against his or her will. Detective Fekety observed the barrel of an assault rifle in a vertical position on a brown couch in one of the bedrooms.One of the ESU detectives showed Officer Moulier a rifle he observed on a couch in the bedroom. (P’s Ex. #1) Officer Moulier contacted the Bronx District Attorney’s officer for the purpose of applying for a search warrant for the apartment. He obtained the warrant and returned to the apartment. During the search, the officer came across two locked safes. For the second time Officer Moulier contacted the Bronx District Attorney’s officer to apply for a search warrant before opening the safes. Upon receiving the second warrant, ESU was again summoned to the location. A new team of detectives from ESU arrived and opened the safes. The ESU personnel recovered two semi-automatic pistols (a 9 MM and a .25 caliber) along with various caliber of bullets, a quantity of cocaine and of marijuana, and a bullet proof vest. (P’s Ex. #2) Officer Moulier took control of the contraband and eventually vouchered the items.Officer Moulier also arrested the defendant and obtained the defendant’s pedigree information. The defendant indicated he was the tenant of Apartment 5B. In describing defendant’s physical condition on this form, Officer Moulier first wrote “app nor” which meant “appears normal.” Officer Moulier testified that he made a mistake on the form and some time later changed this entry to read “app edp,” which meant “appears to be emotionally disturbed person.” The defendant was then transported to the hospital, as the officer said he believed the defendant was a violent, emotionally disturbed person, but also because the defendant wanted to go to the hospital. The defendant was treated and released from the hospital and brought back to the precinct.^{2 3}A detective at the precinct attempted to interview each of the four individuals who had been inside the apartment. The court considered three of the interviews preserved as video recordings, although certain portions of the tape were inaudible. (D’s Ex. H, I, and J) Defendant Gonzalez invoked his right to counsel after being read Miranda warnings. The other male who had been in the apartment, Fidel Armaboles, denied there had been any emergency. Armaboles explained that the defendant was his cousin, that he had met the two women downtown that evening and that they had gone back to the defendant’s apartment. Armaboles denied knowing anything about guns inside the apartment. He said the police gave a lot of different answers as to why there were at the door.The detective also spoke with the female visitors, Latisha Morgan and LaQuinza Johnson, who both denied calling ’911′. Morgan indicated that had not been an emergency and moreover she, the defendant and friends arrived at the apartment minutes before the police arrived. The police knocked on the door and the defendant told them he was not opening the door without a warrant. Neither woman had been to the apartment before. Johnson told a similar story however, when the police arrived and banged on the door, Johnson was scared and nervous about the situation so she called her mother on her cell phone.The defense called one witness, Indira Wilson, a neighbor. Wilson testified that she has lived at 2115 Daly Avenue for approximately five years with her husband and two children. She has known the defendant for three to four years. Wilson testified that she often saw Gonzalez in the building or walking his dog but neither she nor her husband socialized with him. Wilson said that she and her family were home during the incident. They did not hear any noise coming from the defendant’s apartment. While watching a movie, Wilson and her husband heard banging coming from the hallway, and she went out to see what was happening. Wilson saw two uniformed police officers banging on the defendant’s apartment door. She asked the officers what was going on but they did not respond. Wilson went back inside her apartment and continued to look into the hallway through the peephole. She saw an increasing number of police officers congregating in the hallway and stairwell. She heard the officers talking and banging on the door trying to get the defendant to open the door. She did not see the door being opened. Wilson testified that she instructed her two sleeping children to move from their bedroom into the living room because she did not know what was going to happen and she felt a little unsafe.CONCLUSIONS OF LAWThe People have the initial burden of production at a suppression hearing to provide evidence that the police conduct was legal. People v. Chipp, 75 NY2d 327, 335 (1990); People v. Whitehurst, 25 N.Y.2d 389, 291 (1969); People v. Malinsky, 15 N.Y.2d 86, 91, n.2(1965); People v. Hernandez, 40 A.D.3d 777 (2nd Dept. 2007). Once the People have met their burden, the defendant has the ultimate burden of establishing the illegality of the police conduct by a fair preponderance of the evidence. People v. Berrios, 28 N.Y.2d 361 (1971). Any inquiry into the propriety of police conduct must weigh the degree of intrusion entailed against the precipitating and attending circumstances out of which the encounter arose. People v. Salaman, 71 N.Y.2d 869, 870 (1988); People v. DeBour, 40 N.Y.2d 210, 223 (1976). The court must determine whether the police conduct was reasonable considering the totality of the circumstances. People v. Batista, 88 N.Y.2d 650, 653 (1996).The officers’ warrantless entry into the defendant’s apartment was justified by exigent circumstances based on the facts before the court. See People v. Williams, 181 AD2d 474 (1st Dept 1992). Under the emergency doctrine, ordinarily impermissible police conduct may be a reasonable police response to prevent loss of life or property. People v. Doll, 21 NY3d 665 (2013). For the exception to apply, (1) the police must have reasonable grounds to believe that an emergency is at hand and an immediate need for their assistance for the protection of life or property and this belief must be grounded in empirical facts; (2) the search must not be primarily motivated by an intent to arrest and seize evidence; and (3) there must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched. See People v. Mitchell, 39 NY2d 173 (1976).⁴In addition to these general principles, a court must consider the special rules applicable to the treatment of allegedly emotionally disturbed persons. The NYPD Patrol Guide sets forth a protocol, applicable since June 1, 2016, under which officers called to the scene should assess the situation “as to [the] threat of immediate serious physical injury or death to himself or others.” See NYPD Patrol Guide Proc. No. 221-13. There are further regulations to guide an officer who is faced with a potential emotionally disturbed person who will not leave voluntarily. See Patrol Guide 221-14, “hostage/barricaded persons.”⁵ These protocols direct that the highest ranking uniformed police supervisor at the scene is in command, coordinates the response and authorizes any “additional action.”Faced with the dispatcher’s report and the defendant’s shouting through the door, Officer Moulier’s call for back-up to ECU was reasonable under the circumstances. Although a common and perhaps understandable reaction, the defendant’s hostile response to the police intrusion supports the People’s theory that the ECU personnel were justified in checking for an emergency or hostage inside the apartment. Cf. People v. Love, 84 NY2d 917 (1994). Coupled with the information supplied by the dispatcher, a finding of exigent circumstances is supported by evidence in the record. See People v. McBride, 14 NY3d 440, 446 (2010), cert denied 562 US 931 (2010); People v. Fawzi, 155 AD3d 548 (1st Dept 2017); People v. Jassen J., 84 AD3d 620 (1st Dept 2011); People v. Paez, 202 AD2d 239 (1st Dept 1994). The emergency doctrine is premised on reasonableness not certitude. People v. Samuel, 153 AD3d 1202 (4th Dept 2017), citing People v. Doll, 21 NY3d 665, 671 (2013).The defendant argues that the police personnel on scene failed to do a sufficient inquiry into the anonymous complaint of what the police dispatcher claimed was an emotionally disturbed person, and that because of the missing ’911′ call the defense is entitled to an adverse inference as to the dispatcher’s accuracy concerning the content of the phone call.⁶ The defense also suggests, and justifiably so, that when ESU takes an hour or more to get ready to enter an apartment and the situation has already de-escalated to “shuffling of feet and muffled voices” any exigency may have abated. Although the First Department has previously rejected the argument that a mere passage of time abates the emergency, it has been in circumstances which implied a more compelling emergency. See People v. Salazar, 290 AD2d 256 (1st Dept 2002)(identified victim witness told officers of defendant’s violent conduct, threats and disturbed mental condition). See also People v. Molnar, 98 NY2d 328 (2002)(police spent hour considering alternatives before entering apartment with noxious odors where decomposing body was recovered).In hindsight, it is easier to make what in real time may be a difficult judgment call. A tragedy can occur if a call reporting an emotionally disturbed person goes unheeded. The history of NYPD responses to emotionally disturbed persons also shows tragedies can also occur when the police on scene do not exercise appropriate caution.⁷ Since the ranking uniformed officers are the personnel making these tough decisions, one would hope and expect that ample training is now provided to these officers at all supervisory levels.⁸It may be that the police escalated a neighbor’s gripe about late night noise into a full blown operation that disturbed more people than just Ms. Wilson and her family next door. But the defendant did not sustain his burden to demonstrate that the captain’s judgment calls were inappropriate. The officers on scene followed the protocol in the Patrol Guide. Both officers testified that they conferred with the captain, who believed there might be a hostage in the apartment. The captain’s good faith was not challenged by the defense. It was not for Officer Moulier or even the ESU detective to decide their own actions, but rather the higher ranking officer. In addition, there was no suggestion that the police had any prior knowledge of weapons or contraband in the apartment so that their real intention was to seize these items.This was not a situation in which the police went into an apartment without the suggestion of a threat. Compare People v. Fields, 45 NY2d 986 (1978). Even taking into account the effect of an adverse inference, the defense has not shown that the captain’s call was overly zealous. Both the warrantless entry and the protective sweep⁹ uncovering the weapon were valid judgments calls.CONCLUSIONAccordingly, for the foregoing reasons, the defendant’s motion to suppress is denied. This constitutes the decision and order of the court.Dated: July 30, 2019Bronx, New York