Defendant Frank Hazzard stands indicted for Criminal Possession of a Weapon in the Third and Fourth Degrees. The People charge that defendant, who has in the past been convicted of a crime, possessed a firearm inside the bedroom in which he slept. Defendant has moved to suppress the firearm, other physical evidence recovered with it, and certain statements he made about the weapon after his arrest. The court held a hearing on the motion at which five witnesses testified. For the reasons stated below, the court agrees with defendant that the firearm and related physical evidence must be suppressed. While any issue about the statements may therefore be moot, the court denies defendant's motion to suppress the statements.

The People's evidence persuasively established probable cause to arrest defendant for weapons possession. Officer Robert McNamara testified, credibly and without rebuttal, to the events that created probable cause. Suffolk County detectives informed Officer McNamara and other NYPD officers on the evening of February 15, 2010, that they had just interviewed defendant in their automobile as to what he might know about a Suffolk County homicide. As defendant left their vehicle to enter the Van Dyke houses, a firearm fell from his waistband to the pavement. Defendant snatched the weapon, ran into the housing project, and escaped pursuit.

That information—presumptively reliable because it came from fellow police officers, and based on events personally witnessed by them—established probable cause to arrest defendant. People v. Ketcham, 93 NY2d 416, 419-20 (1999). Accordingly, NYPD officers legally arrested defendant when they encountered him on the street on the morning of February 17, 2010. Officer Michael Burke testified that defendant offered a spontaneous and exculpatory explanation for why he ran from the Suffolk County detectives on February 15, 2010, and that statement was lawfully obtained. Officer Burke further testified that he administered Miranda warnings shortly after noon and that defendant waived his rights. There is no basis in the evidence to doubt that the admissions thereafter made by defendant were voluntarily obtained.^[FN1] Less than five hours later, Detective John Miata cursorily reminded defendant of his rights and obtained an additional statement.^[FN2] There likewise is no reason to doubt that these admissions were voluntarily made. As a result, defendant's statements—voluntarily made after an arrest based on probable cause—should not be suppressed.

In between the time the Suffolk County detectives saw defendant with a gun on the evening of February 15, 2010, and defendant's arrest on February 17, 2010, police officers recovered a firearm from under the mattress in defendant's bedroom in apartment 3A at 372 Blake Avenue, in the Van Dyke houses. The officers also recovered ammunition and magazines in the bedroom closet, and observed mail addressed to defendant. The search took place about half an hour after defendant had evaded capture by the Suffolk County [*3]detectives.

The officers who obtained the physical evidence had probable cause to search defendant's home based on what they had learned from the Suffolk County detectives. See People v. Tambe, 71 NY2d 492, 503-04 (1988). And the officers had pin-pointed the location where defendant lived with information from housing records. But the officers did not obtain a search warrant. Nor have the People sought to justify the search on an exigency or "hot pursuit" theory, see People v. McBride, 14 NY3d 440 (2010). That is presumably because the evidence was not recovered in plain view in a simple search for defendant, but after it was obvious that defendant was not present and by inspection of areas in which objects, but not a person, could be hidden.

The People instead rely on the theory that they received consent to search from defendant's mother and his paramour. The issue was hotly contested at defendant's suppression hearing. The weighing of the evidence on the consent issue is determinative of whether defendant's firearm should be suppressed.

Officer McNamara was the sole witness for the People on the consent issue. According to the officer, he and two colleagues knocked on the door of defendant's apartment about 30 minutes after defendant fled from the Suffolk County detectives. The door was opened by defendant's mother, Lola Hazzard, who stated that she was the tenant of Apartment 3A and that defendant was not present. Officer McNamara recalled that Ms. Hazzard was Hispanic, dark-haired, and about 52 or 53 years old. She walked unaided.

Ms. Hazzard invited the three officers inside and walked them into the living room. There the officers asked to search the apartment and displayed a consent form. They advised Ms. Hazzard that she was free to refuse, but she signed the form. The document, which was received in evidence, shows an apparently shaky signature in the name of Lola Hazzard. The signature appears underneath, not on, the line on the form intended as the signature line, and on top of handwriting specifying the date and apartment number.

During the officers' conversation with Ms. Hazzard they were joined by Madeline "Cookie" Rivera, defendant's paramour, who often stayed with defendant in Apartment 3A. Ms. Rivera agreed to show the officers the bedroom in which she and defendant slept. Officer McNamara entered the room and searched under the mattress. There he found a .25 caliber pistol. He put it in a plastic bag and placed it down—perhaps on the bed, or perhaps elsewhere—while the dresser drawers and the closet were searched. During this time, Ms. Rivera stood in the bedroom doorway and watched. [*4]

Madeline Rivera testified for defendant. She stated that in February 2010 Ms. Hazzard was 75 years old, frail, and bed-bound. As of February 2010 Ms. Hazzard had not been able to walk unassisted for a year or more. By February 2010 Ms. Hazzard also was often unable to understand what she was told or to respond to it. At times she might be lucid, but at other times she was incoherent.

Ms. Hazzard was dependent for her care primarily on two healthcare providers who would attend to her 12 hours each day. With assistance from Ms. Rivera and family members they fed her, dressed her, gave her the numerous types of medication prescribed for her, and washed her in her bed. Ms. Hazzard was incontinent, and wore diapers. With assistance she could be moved from her mechanical hospital bed to a chair or to a wheelchair placed close to the bed, in particular when she was to be transported by ambulette for kidney dialysis. Ms. Hazzard died on October 31, 2010.

Ms. Rivera was in Ms. Hazzard's apartment on the evening of February 15, 2010. Present as well were Ms. Hazzard, who was in bed, and Paulette Wright, one of the home attendants, who was about to complete her shift. Ms. Wright answered a knock on the door. Police officers asked if everything was all right and entered, saying "could we look around." Though neither Ms. Rivera nor Ms. Wright responded, four officers looked in the apartment's rooms. In Ms. Hazzard's bedroom, the officers asked if she had seen her son. When she said she saw him earlier, the officers left.

The officers returned after Ms. Wright left for the night. When Ms. Rivera answered their knock, four to six officers walked in without obtaining consent or informing Ms. Rivera that she could withhold it. The officers searched various rooms in the apartment. One officer came out of defendant's bedroom, left the apartment for two minutes, and returned with a piece of paper he wanted Ms. Hazzard to sign. He advised Ms. Rivera that the paper would ensure that Ms. Hazzard did not get in trouble with "the housing." The officer explained nothing else to Ms. Hazzard. She signed the document in her bed without reading it or even putting on her glasses. No officer had ever asked Ms. Rivera to consent to an entry into the bedroom where she and defendant stayed. After Ms. Hazzard signed the document, officers emerged from that bedroom displaying a gun in a plastic bag.

Ms. Rivera was the only defense witness to testify about the search. However, Betty Jenkins, one of Ms. Hazzard's care providers, offered testimony corroborating Ms. Rivera as to Ms. Hazzard's physical condition around the time of the search. Ms. Jenkins noted that Ms. Hazzard had dementia, suffered from seizures, and required dialysis. She could not get out of bed, and required help bathing, eating, and dressing. Ms. Hazzard "just wasn't alert and coherent most of the time." In February 2010 she could not have walked to the front door of her apartment.

The defense also introduced into evidence the records of two stays by Ms. Hazzard at SUNY's Downstate Medical Center in January of 2010. Those records show that Ms. [*5]Hazzard, whose date of birth was February 13, 1934, was admitted on January 14, 2010 after becoming disoriented and sick during her regular dialysis session. On admission her diagnosis was "altered mental status" along with end stage renal disease,^[FN3] epilepsy, and "persistent mental disorders." Ms. Hazzard was not considered "disoriented" or "unresponsive," but she had a history of "chronic dementia." She was not able to sign the relevant forms indicating consent to treatment, which were instead signed by her care giver, Betty Jenkins.

The records of Ms. Hazzard's hospital stay reflect her physical and mental frailty. She required "complete care" in care categories such as bathing, grooming, toileting, and dressing. Occasional references appear that her mental state is "oriented" but others indicate that she was "confused" or the victim of "dementia." One note by a nurse, dated January 18, 2010, at 6:30 p.m., is that Ms. Hazzard was "eating her own socks. Socks removed from [patient's] mouth." Ms. Hazzard was permitted to go "out of bed to chair as tolerated." However, there is no indication in the records that Ms. Hazzard ever left her bed except with physical aid, for a transfer to a stretcher or wheelchair.

On January 20, 2010, Ms. Hazzard was released from Downstate Medical Center on a stretcher, for transport home in an ambulance. On reaching her residence, however, she suffered a seizure and was immediately returned to the hospital. On this occasion her diagnosis was epilepsy, end stage renal disease, and senile dementia. Ms. Hazzard was considered to be at activity level "1" — confined to bed. Her mobility score was " 2 " —

essentially, she could move slightly in bed, and her mobility before admission was described as "confined to bed." Ms. Hazzard's rehabilitation consultation form specified that she suffered from "severe hamstring contractures" and "advanced contractures of both hips and both knees."Mentally, Ms. Hazzard was "alert," but "confused," disoriented, and impaired. Her consent for treatment was again provided by one of her care givers. On this occasion Ms. Hazzard remained in the hospital until January 26, 2010.

Had only Officer McNamara and Madeline Rivera testified, this court would have concluded that Ms. Hazzard and Ms. Rivera consented to the search of Apartment 3A. The officer's testimony was straightforward and facially credible. Ms. Rivera's testimony was also facially credible, but she was an interested witness. However, Ms. Rivera's testimony was corroborated by Ms. Jenkins' apparently disinterested testimony and, as well, by the hospital records. The court concludes that the events could not have taken place as described by Officer McNamara. In particular, Ms. Hazzard could not have walked unaided to her front [*6]door, admitted the officers, and signed a consent for a search of the apartment while in the living room. She was sick, elderly, and bed-bound. She might or might not have been mentally fit at any particular point, but she was simply not physically able to play the role assigned to her by the officer.

The People suggest that the officer may simply have confused Ms. Hazzard and Ms. Rivera, the latter of whom might be described in the terms used by the officer—Hispanic, in her fifties, and dark-haired. But upon examination, that theory unravels quickly. Officer McNamara was quite particular in describing his conversation with the woman who opened the apartment door. She identified herself as the tenant of the apartment and as defendant's mother; Ms. Rivera would not have done so. And the officer was quite particular as well about the signing of the consent form; it was signed in the living room, after Ms. Hazzard was joined by Ms. Rivera. And, of course, the name placed on the form was Lola Hazzard. There is no way to square the officer's account with the fact that Ms. Hazzard was confined to her bed.

It remains possible that Ms. Rivera gave oral consent to the search of defendant's bedroom, as Officer McNamara stated. And, given that Ms. Rivera and defendant shared that room, she may well have been the only person who could give a valid consent. See, e.g., People v. Petrie, 89 AD2d 910 (2nd Dep't 1982). But Ms. Rivera denied that she was asked for, or gave, consent even for the officers to enter the apartment, much less to search the bedroom. The officer's insistence that Ms. Hazzard was ambulatory and gave consent prevents the court from relying on his ancillary testimony about Ms. Rivera—and from finding that the People have met their "heavy burden" of showing that the evidence at issue was recovered in a valid consent search. See People v. Whitehurst, 25 NY2d 389, 391 (1969).

For the foregoing reasons, the evidence and information obtained in defendant's bedroom, including his firearm, must be suppressed. If that determination should be reversed, defendant's statements would be admissible at a trial of the indictment. If there is no appeal, the indictment will be dismissed in 31 days.

E N T E R:

_______________________________MARK DWYER

Justice of the Supreme Court

DATED: September 26, 2011