The Defendant is charged with Attempted Robbery in the Second Degree (PL 110/160.10[2][a]) and other related charges. This matter was sent to Part 12, forthwith from Part 45, for a combined Dunaway, Wade, Rossi, Payton, and Dory hearing. The hearing was conducted over the course of three days, to wit: May 9, 2022, May 10, 2022, and May 16, 2022. There were three witnesses who testified. The People and Defendant were afforded an opportunity to submit summation memos, and to provide oral summation at the close of testimony. The People and the Defendant provided oral summation, and the Defendant provided a written summation (in the form of a letter to the court), highlighting points of law. No additional documents, or testimony was heard or reviewed for the purpose of this Decision and Order. Facts Detective Robert Murnane, an eighteen year veteran of the NYPD, of the Staten Island Robbery Squad testified that he conducted a photo array with the victim in this case, in his department vehicle, on June 29, 2020. According to the testimony, the photo array was prepared by Detective Woodhouse, a fourteen-year veteran of the NYPD, currently assigned to the Detective Bureau of Staten Island Night Watch Operations. Detective Robert Woodhouse testified that fingerprints were lifted from the victim’s vehicle as part of the NYPD’s investigation. One of the fingerprints was determined to be that of the defendant Arthur Williams. Detective Woodhouse conducted a further investigation on the name Arthur Williams, along with his NYSID number. The Detective activated a suspect only investigation card on Arthur Williams and began to prepare a photo array. The photo array consisted of six images on a piece of paper. Knowing that he had a person of interest, Detective Woodhouse put Arthur Williams’ name and NYSID number into a database and allowed for the computer program to select similar images. The computer program [The Photo Manager Database System] selected five images, that it deemed to be similar, and Detective Woodhouse concurred. He then assigned the images into a photo array which was delivered to Detective Murnane. Detective Murnane testified that he read the “previewing instructions” to the victim prior to showing him the photo array. After the victim viewed the photo array, Detective Murnane asked “Did you recognize anyone in the photo array?” The victim answered, “number three.” The victim further stated, while tapping on the picture of the person in the photo marked “3″ that “He robbed me and punched me.” The testimony adduced at the hearing showed that the person in the photo array, designated in position number three, is the defendant, Arthur Williams. Shortly thereafter, Detective Woodhouse, having determined that probable cause was established, he submitted the investigation card for arrest by the Staten Island Warrant Squad. Former Detective Michael Scire last assigned to the Staten Island Warrant Squad (retired, after twenty-three years of service), testified that on July 7, 2020, he was assigned to a new case to apprehend Arthur Williams. On July 8, 2020, Detective Scire went to 367 B Jersey Street, Staten Island, New York to look for Arthur Williams. The reason why this location was selected by the Detective, is because Arthur Williams designated this address, during a prior arrest, as the home of his then girlfriend, Lisa Grell. The building is a two-story residence, with a front door leading to an upstairs apartment. The upstairs apartment belongs to Lisa Grell. Detective Scire testified that he knocked on the front door, and that Ms. Grell answered, and that he explained that he was looking for Arthur Williams. Ms. Grell went back upstairs to the apartment and returned a short while later. When she returned, she told the Detective that Arthur Williams was not present at the location. The Detective described the staircase leading up to another entry door, leading to the apartment of Ms. Grell. Moments thereafter, and while conversing with Ms. Grell, Detective Scire was notified over police radio that Arthur Williams was attempting to flee from the building, through an upstairs rear window. Members of the Staten Island Warrant Squad had taken position in the rear of the building and were prepared for a situation such as this. At that point, Detective Scire walked up the staircase about halfway, announcing himself as the police department, and asking Arthur Williams to come outside. This announcement was made two or three times according to the testimony. The Detective then backed down from the staircase and went to the sidewalk area in front of the doorway, awaiting Arthur Williams exit from the building. A short while later, a male exited the doorway, and the Detective identified him as Arthur Williams, who was taken into custody at that time, on the sidewalk. Discussion This court conducted a three-day combined (Dunaway, Wade, Rossi, Payton, and Dory) Hearing. Two NYPD Detectives, and one retired NYPD Detective credibly testified as to the facts, in this Decision and Order. Dunaway/Wade Issues The New York City Police Department’s photo manager system, described above, is today’s computer-generated equivalent of a long-established police procedure: showing a compilation of photographs of previous arrestees, in the form of a “mug book” (People v. Burts, 78 NY2d 20, 22 [1991]) or a “drawer[ ] of photographs” (People v. Hernandez, 70 NY2d 833, 834 [1987]), to people who witnessed a crime, in order to establish a suspect. Review of whether a pretrial identification procedure is unduly suggestive is subject to a well-established burden-shifting mechanism. Initially, the People have the burden of producing evidence in support of the fairness of the identification procedure. If this burden is not sustained, a peremptory ruling against the People is justified. If the People meet their burden of production, the burden shifts to the defendant to persuade the hearing court that the procedure was improper. In other words, “[w]hile the People have the initial burden of going forward to establish…the lack of any undue suggestiveness in a pretrial identification procedure, it is the defendant who bears the ultimate burden of proving that the procedure was unduly suggestive” (People v. Chipp, 75 NY2d 327 [1990], cert, denied 498 US 833 [1990]; see also People v. Jones, 2 NY3d 235 [2004]; People v. Ortiz, 90 NY2d 533 [1997]). The People have demonstrated that the photo array was computer generated by the photo manager system, and that it was reviewed by the officer prior in preparation, prior to presentation before the victim. There was no testimony elicited at the hearing that would demonstrate any unduly suggestive nature of the photo array. Defense offers a letter/memorandum of law to the court, in which they claim that the photo array was unduly suggestive, and that the Defendant appears to be significantly older that the other individuals in the array. No basis for that conclusion was provided, and no testimony exists as evidence for this claim. The court has had an opportunity to review the photo array finds that it is not unduly suggestive, and that it was conducted fairly. The People have met their burden of producing evidence in support of the fairness of the identification procedure, and therefore, the identification will not be suppressed. Rossi, Payton, and Dory Issues The issue before the court is whether the arrest constitutes a warrantless seizure inside Arthur William’s house. There is hearsay testimony that Detective Scire was informed over his department radio that Arthur Williams was attempting to flee the upstairs apartment through a rear window. Acting on that information, Detective Scire walked up a staircase that leads up to a doorway to the apartment Arthur Williams was located. There is no testimony that the Detective entered the doorway at the top of the staircase, into the apartment. The testimony elicited at the hearing indicates that Detective Scire went halfway up the preceding staircase and announced who he was and why he was there, asking for Arthur Williams to leave the apartment and come outside. There is further testimony that the Detective left the area with the staircase, and went back outside, where he awaited Arthur Williams’ exit. Arthur Williams subsequently exited the building onto the public sidewalk where he met Detective Scire, who identified him and placed him into custody. The Supreme Court of the United States held in Payton itself that “the Fourth Amendment…prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest” (445 US at 576 [emphasis added]) despite “ample time to obtain a warrant” (id. at 583, 100 SC. 1371). The Court explained that “the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant” (id. at 590, 100 SCt 1371). As the Supreme Court has subsequently explained, Payton does not prohibit the police from knocking on a suspect’s door because, “[w]hen law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak” (Kentucky v. King, 563 US 452, 469-470 [2011]). However, police may not compel a suspect to open a door by threatening to violate the Fourth Amendment by, “for example,…announcing that they would break down the door if the occupants did not open the door voluntarily” (id. at 471, 131 SCt 1849). Nor does Payton prohibit a warrantless arrest in the doorway; indeed, “the warrant requirement makes sense only in terms of the entry, rather than the arrest [because] the arrest itself is no more threatening or humiliating than a street arrest” (3 Wayne R. LaFave, Search and Seizure §6.1[e] [5th ed. 2012] [internal quotation marks omitted]). Consistent with that understanding of Payton as prohibiting only “the police…crossing the threshold of a suspect’s home to effect a warrantless arrest in the absence of exigent circumstances” (People v. Minley, 68 NY2d 952 at 953 [1986]), the Court of Appeals has upheld warrantless arrests — both planned and unplanned — of defendants who emerged from their homes after police knocked on an open door and requested that the defendant come out (see Spencer, 29 NY3d at 312, revg. on other grounds 135 AD3d 608 [1 Dept 2016]), used a noncoercive ruse to lure the defendant outside (see People v. Roe, 73 NY2d 1004 [1989], affg 136 AD2d 140 [3d Dept 1988]), or directed the defendant to come out after seeing him peek through a window (see Minley, 68 NY2d at 953). The Court of Appeals also upheld a planned, warrantless arrest where the defendant either voluntarily exited his house, or stood behind his mother in the front doorway, and stuck his head out of the door in response to a police request that he come outside (see Reynoso, 2 NY3d at 821, affg 309 AD2d 769 [2d Dept 2003]). In other words, for purposes of determining whether there was a Payton violation, our state’s highest court has deemed it to be irrelevant whether the defendant was standing outside his home or was standing “in the doorway,” and the court has even upheld a threshold arrest. In the instant matter, the Defendant came outside, voluntarily, onto the sidewalk, in public, and he was taken into custody at that time. The Detective’s entry into the building and up a staircase that leads to the apartment, for the purpose of announcing himself, is of no moment. The Detective testified that he entered the foyer/staircase after, and because he was told that Arthur Williams was attempting to flee out of a rear second floor window. There was no testimony to indicate that the Defendant was ever aware that the Detective entered the foyer/staircase prior to the arrest. The Defense argues that there needed to be firsthand testimony regarding the alleged flight by the Defendant, to constitute exigent circumstances for the officer to enter the building. However, the arrest did not take place within the building, or within the apartment. It occurred in public. In fact, the Defendant was cooperative, and his personal belongings were provided to Ms. Grell, at his request during the arrest. There is no testimony or other relevant evidence to suggest that the Detective entered the apartment which was separated from the foyer/staircase by a landing and a doorway. There is no testimony or other relevant evidence to suggest that the arrest was made anywhere other than on the public sidewalk in front of the building. Critically, the police never arrested the Defendant in the home and, thus, the intrusion prohibited by Payton did not occur. Moreover, and therefore, evidence obtained resulting from the arrest, will not be suppressed. This shall constitute the Decision and Order of this Court after hearing. The Clerk of the Court shall enter judgment accordingly. This matter is sent forthwith to Part 45 for trial on June 6, 2022. Dated: May 19, 2022
