[*1]

The defendant, Richard J. Regan, is charged with one count of criminal possession of a controlled substance in the 7th degree a violation of Penal Law §220.03 a class A misdemeanor. On August 11, 2009, the parties stipulated to and this Court conducted a combined Mapp/Huntley/Dunaway (Mapp v. Ohio, 367 US 643 [1961]; People v Huntley, 15 NY2d 72 [1965]; Dunaway v. New York, 442 US 200 [1979]) hearing regarding the defendant's pre-trial motion to suppress (i) the controlled substance seized, (ii) the defendant's statements and (iii) whether the police had probable cause to arrest the defendant.

The People called Detective Kevin Kenney ("Det. Kenney")and Police Officer James Zambik ("P.O. Zambik") and the defense called the defendant, Richard Regan. This Court found the testimony of both Det. Kenney and P.O. Zambik credible and the testimony of the defendant credible in some respects and not credible in other areas as further discussed herein.

Testimony of Detective Kenney

Det. Kenney is a twenty-two (22) year veteran of the Nassau County Police Department having a command at the Eighth Precinct. On October 25, 2008 Det. Kenney was working the 7:00 a.m. to 5:00 p.m. tour receiving cases that were being referred to him during his tour. Det. Kenney testified that he received a call from another police officer to respond to 70 Dorothy Street, Bethpage, NY ("Premises") to investigate the circumstances surrounding the death of Christine Hollingsworth who had been transported to the hospital by private automobile from the Premises and died from an overdose of narcotics. [*2]

Det. Kenney arrived at the Premises about 8:45 a.m. and spoke with the police officers at the scene as well as defendant's girlfriend, Bonnie Dean, who was on the porch. Det. Kenney advised Ms. Dean he was there to investigate the death of Ms. Hollingsworth and asked if he could go inside the house. Det. Kenney testified that Ms. Dean gave him permission to enter the house and conduct his investigation in the house. Ms. Dean also advised Det. Kenney that she lived in the house, but the house was owned by her boyfriend, Richard Regan, (the defendant herein) and that Mr. Regan lived in Suffolk County. Thereafter, Det. Kenney went into the house and into a bedroom upstairs and found a pocketbook on the floor of the bedroom which contained identification indicating that the pocketbook belonged to the deceased, Christine Hollingsworth.

At approximately 9:00 a.m. Det. Kenney testified he had a conversation with the defendant, outside the house in Det. Kenney's unmarked police car, where the defendant sat in the rear right passenger seat and Det. Kenney sat in the front. Det. Kenney further testified he wanted to interview the defendant in the car and not in the house because it was warmer in the car and because there were less distractions. The conversation with the defendant took about 15-20 minutes and was reduced to writing by Det. Kenney and signed by the defendant. The statement is also known as a "32B" and was admitted into evidence as People's Exhibit 1 without objection.

Det. Kenney also testified that at the time the defendant was giving his "32B" statement, he voluntarily went with Det. Kenney to the car, was not in custody, he was not handcuffed, no weapons were drawn, the defendant was free to leave at any time and the defendant was not read his Miranda rights.

Det. Kenney further testified that he did not see any drugs in the house, only some crack pipes and did not see any drugs in possession of the defendant.

Det. Kenney also testified that Sergeant Gaffney arrived before him at the Premises and Bonnie Dean also gave him permission to enter the house and that she also stated that she took care of the house.

Testimony of James Zambik

P.O. Zambik is a fifteen (15) year veteran of the Nassau County Police Department with a command currently at the Eighth Precinct. On October 25, 2008 P.O. Zambik was working the 7:00 a.m. to 2:00 p.m. tour and received a call to respond to the Premises. When P.O. Zambik arrived he saw Sergeant Gaffney standing outside the house by the front door. P.O. Zambik and Sergeant Gaffney both approached Bonnie Dean who was by the front door and explained that they were investigating a fatality and were there to secure the scene. P.O. Zambik further testified he requested permission to enter the house from Bonnie Dean and she consented. Thereafter, both P.O. Zambik and Sergeant Gaffney entered the house. P.O. Zambik testified on cross-examination that he did not recall who entered the house first, but since they both received the consent to enter from Bonnie Dean, whether they entered simultaneously or one after the other is irrelevant. There was no [*3]testimony that Sergeant Gaffney entered the house prior to P.O. Zambik's arrival.

Thereafter, P.O. Zambik testified he observed the defendant laying on the bed and on the bed in plain view next to the defendant were some substances he believed were crack cocaine. There was also a woman, Nicole Feist, sitting on the bed. Some time thereafter, P.O. Zambik testified he arrested the defendant and Nicole Feist.

P.O. Zambik also testified the defendant's statement was taken outside the house, which testimony was consistent with Det. Kenney.

Testimony of Richard Regan

The defendant, Richard Regan, testified he lived in Suffolk County for the past fourteen (14) years. The defendant also testified the Premises was his family's, it was left to him and he did not live at that there, but his girlfriend, Bonnie Dean, lived there and occasionally allowed others to stay at the Premises over his objection.

After working thirteen (13) hours, he drove from Suffolk County to the Premises and was tired. After arriving at the Premises and speaking with Bonnie Dean, the defendant's girlfriend, the defendant went upstairs and laid down on the bed and fell asleep. The defendant also testified that when he laid down on the bed, another woman, who he didn't know, was sitting on the foot of the bed. Next thing the defendant remembered is he woke up and the police were there.

The defendant also testified that Bonnie Dean never gave the police permission to enter the house and that Det. Kenney took his statement (32B) upstairs in the house, not in Det. Kenney's car, as Det. Kenney had testified and he was not free to leave.

The defendant denied having possession of the crack/cocaine. Defendant admitted he was an addict and did not drink alcohol or use any other controlled substance for the past twenty (20) years. The defendant admitted that in 1986 he was convicted of possessing cocaine, but defendant testified even though he possessed the cocaine, he did not use it.

Defendant also testified his "32B" statement was accurate and was given voluntarily and he was not coerced in giving the statement. The defendant further testified there was one mistake made in his "32B" statement, in that he got off from work at 7:30 a.m. and not 7:00 a.m., but in all other respects the statement was accurate.

Subsequent to October 25, 2008, the defendant testified the last time defendant was in the house was several months ago.

Although the parties stipulated to a Mapp/Huntley/Dunaway hearing, the hearing evolved [*4]into a Mapp/Huntley/Dunaway/Payton (Payton v. New York, 445 US 573 [1989]) hearing as counsel for the defendant had argued the police illegally entered a home owned by the defendant without his consent or exigent circumstances and effectuated a warrantless arrest.

Payton Hearing

It is well settled, absent consent or exigent circumstances, the police are not permitted to invade a person's home without a warrant. (Payton, supra ). In the instant action, the parties agree that no warrant was issued and no exigent circumstances existed. Therefore, the only issue before this Court, regarding whether the police entered the Premises legally, is whether consent to enter the Premises was voluntarily given, by a person authorized to give consent.

In the instant action, both Det. Kenney and P.O. Zambik testified that Bonnie Dean gave each of them permission to enter the house at different points in time on the same day. Both Det. Kenney and P.O. Zambik also testified that Ms. Dean advised them that although she did not own the house, she was the defendant's girlfriend, lived there and took care of the house. The defendant also testified that Ms. Dean was his girlfriend and lived at the Premises. Therefore, based upon the testimony of Det. Kenney and P.O. Zambik coupled with the admission of the defendant that Ms. Dean lived at the Premises this court has found that the voluntary consent, for the police to enter the Premises, given by the defendant's girlfriend who has sufficient authority and control of the Premises to be valid. (See People v. Hardy, 187 AD2d 810, 589 NYS2d 966(3rd Dep't. 1992); People v. Charbonier, 220 AD2d 221, 631 NY2d 696, (1st Dep't. 1995)

Even though the prosecution has a heavy burden of proving consent, based upon the credible testimony of both Det. Kenney and Police Officer Zambik the prosecution has satisfied this Court that its burden was met. Although the defendant claims Ms. Dean's consent was not obtained, the defense did not call Ms. Dean to testify nor did the defense offer any credible evidence to refute the prosecution's position that Ms. Dean's consent was freely given. Surprisingly, the defendant, who owned the Premises, (but did not live there) never testified he objected to the police presence at the Premises or instructed the police to leave.

Huntley Hearing

It is well settled that the burden of proof as to the voluntariness of defendant's statement is on the People. The Court must find voluntariness beyond a reasonable doubt before the statement can be submitted to the jury. See, People v. Huntley, 15 NY2d, 72 (1965).

In order to evaluate the voluntariness of defendant's statement, the Court must first determine whether defendant's presence in the back seat of Det. Kenney's police car constitutes a custodial detention.

The test used to determine whether a defendant is in custody is based upon whether a reasonable person in the same situation as the defendant, innocent of any crime, considers himself [*5]in custody. In an analogous case, People v. Stricker, 172 AD2d, 635, 568, NYS2d 437 (2d Dept. 1991), leave to appeal dismissed, 79 NY2d 864 (1992) appeal denied, 80 NY2d 839 (1992), the defendant and his companions voluntarily consented to accompany the police to the police station to answer questions regarding a homicide. While at the police precinct, the defendant was identified as a result of an inadvertent encounter. The defendant moved to suppress the identification testimony of the witness and the Court denied same stating,

The uncontradicted testimony of the arresting officer demonstrated that the defendant and his companions voluntarily and without objection consented to accompany the police to the station house to answer questions, and that the defendant was not placed in custody until after the witness identified him. The mere fact that the defendant may have felt obliged to cooperate with the police in order to maintain an appearance of innocence does not call for a different conclusion (see, People v. Prahl, 124 AD2d 607, 507 NYS2d 750).

Similarly, in People v. Yukl, 25 NY2d 585, 307 NYS2d 857 (1969), the defendant notified the police that he found a dead body. After the police arrived at the scene, they suggested that the defendant and his wife accompany them to the police station because there would be less disturbances there. The defendant was questioned at the police station, in the squad room, by various detectives for over three and a half (3 ½) hours. Thereafter, the defendant was advised of his constitutional rights which he subsequently waived and confessed to the murder.

In deciding whether a defendant was in custody prior to receiving his warnings, the subjective beliefs of the defendant are not to be the determinative factor. The test is not what the defendant thought, but rather what a reasonable man, innocent of any crime, would have thought had he been in the defendant's position. (1. Hicks v. United States, 127 US App. DC 209, 382 F.2d 158; see, also, People v. Rodney P. (Anonymous), 21 NY2d 1, 286 NYS2d 225, 233 NE2d 255; Williams v. United States, 9 Cir., 381 F.2d 20; Fuller v. United States, 132 US App. DC 264, 407 F.2d 1199; State v. Seefeldt, 51 N.J. 472, 242 A2d 322; Conyers v. United States, 237 A2d 838 (D.C. Ct. Of App.); State v. Bower, 93 Wash.2d 634, 440 P.2d 167). Moreover, the fact that a defendant is being interviewed in the police station does not necessarily mean that he is to be considered in custody'. United States v. Bird, 293 F. Supp. 1265; Frije v. United States, 1 Cir., 408 F.2d 100; Hicks v. United States, supra .) This is merely one of the factors to be considered in reaching the ultimate conclusion. (People v. Yukl, supra , at page 589).

The Court of Appeals is People v. Yukl, supra , concluded by stating that prior to the defendant being advised of his rights during the three and a half (3 ½) hour interview at the police station, the defendant was not in custody.

In Hicks v. United States, supra , the defendant called the police to report that the man with whom she was living had been stabbed. When the police arrived they found the man dead from a stab wound in the chest. The defendant told police that the decedent said he had been stabbed by some jitterbugs' during a robbery. In response to a police request, the defendant consented to accompany the officers downtown' and give a statement. The interview, which was not preceded by Miranda warnings, consumed about two (2) hours and forty-five (45) minutes, including several interruptions. A statement was reduced to writing and the defendant signed it. Then, while awaiting [*6]a ride home, she blurted out a confession that she had stabbed her husband. The Circuit Court of Appeals for the District of Columbia, applying the test mentioned above, found the defendant not to have been in custody and held the confession admissible. (People v Yukl, supra ).

In State v. Bower, supra , ownership of the car believed driven by the perpetrator of an armed robbery was traced to the defendant. He answered a few questions of the police at his home and then consented to go downtown to continue the interview. On the way downtown he changed his story. Not until they had arrived at the police station did defendant receive any warnings, at which time he confessed. His confession was held not to be the product of custodial interrogation. (See, also, State v. Seefeldt, supra .) (People v Yukl, supra .) (Also, see People v. Harris, 48 NYS2d 208, 422 NYS2d 43, 1979).

In the instant action, it is uncontroverted that the defendant, voluntarily went with Det. Kenney and gave a statement ("32B") that Det. Kenney reduced to writing and was executed by the defendant. Detective Kenney also testified, at the time of the defendant gave his statement he was not handcuffed or in custody, no weapons were drawn and he was free to leave. The defendant also testified he gave his statement voluntarily and was not coerced. Therefore, at the conclusion of Det. Kenney's testimony and the defendant's testimony, it is clear that the defendant was not in custody when he made the statement (People's Exhibit 1) and the statement was voluntary and not the result of a custodial detention or interrogation.

Dunaway Hearing

At a Dunaway hearing, the People must establish that the police had probable cause to arrest the defendant.

Criminal Procedure Law 140.10 states that "... a police officer may arrest a person for ... (b) a crime when he has reasonable cause to believe that such person has committed such crime, whether in his presence or otherwise ..."

Probable cause requires information sufficient to support a reasonable belief that an offense has been or is being committed or that the defendant committed the crime or offense (People v. Bigelow, 66 NY2d 417, 423; People v. McRay, 51 NY2d 594,602; People v. De Bour, 40 NY2d 210, 223; People v. Harris 224 AD2d 711; People v. Hicks, 68 NY2d 234, 508 NYS2d 163 [1986]).

In the instant action P.O. Zambik testified he observed the defendant laying on a bed in the house and in plain view on the bed next to the defendant were substances P.O. Zambik believed were crack cocaine. It is hard for this Court to imagine a better example of a police officer having probable cause to arrest the defendant than observing crack cocaine next to the defendant on the bed he is in.

Although the defense tried to imply the crack cocaine on the bed could have belonged toNicole Feist, the other woman, Mr. Regan testified was sitting on the bed when he fell asleep, this Court simply does not find Mr. Regan's testimony credible regarding this issue as to how the crack cocaine mysteriously appeared on the bed next to him in a bed he fell asleep in with a woman he did not know.

Mapp Hearing [*7]

A Mapp Hearing deals with the admissibility of physical evidence obtained by the police as a result of a search and seizure pursuant to a warrant or consent or incident to an arrest or that no search at all occurred. It is will settled that a violation of the defendant's constitutional rights regrading the seizure of the defendant's physical evidence must be suppressed. (See, Mapp v. Ohio, 367 US 643).

The People initially have the burden of proving that the evidence was seized legally. Thereafter, the defendant has the burden of proving illegality of the seized evidence by preponderance of the evidence. (See, People v. Berrios, 28 NY2d 361, 321 NYS2d 884 (1971). The People have the burden of going forward to show the legality of the police conduct in the first instance (People v. Whitehurst, 25 NY2d 389, 391, 306 NYS2d 673; People v. Malinsky, 15 NY2d 86, 91 n. 2, 262 NYS2d 65, 70; People v Berrios, 28 NY2d 361, 32 NYS2d 884 (1971). It is the accused, not the People, who must shoulder the burden of persuasion on a motion to suppress evidence (People v. Berrios, 28 NY2d 361, 367, 321 NYS2d 884, 888 (1971); Nardone v. United States, 308 US 338, 341, 60 S.Ct. 266, 84 I. Ed. 307)).

In the instant action, since this court has already determined that the arrest of the defendant was valid as well as the police presence in the house, there was no violation of the defendant's constitutional rights and therefore, the crack cocaine seized in plain view need not be suppressed. Therefore, based upon the foregoing defendant's motion to suppress is denied in its entirety.

This constitutes the decision and order of the Court.

SO ORDERED:

__________________________________

DISTRICT COURT JUDGE

Dated: September 3, 2009

cc: Kathleen M. Rice, Nassau County District Attorney

Timothy D. Aldridge, Esq.