PEOPLE v. SAMPSON (2025)

Judgment, Supreme Court, New York County (Gregory Carro, J., at suppression;  Ruth Pickholz, J., at trial and sentencing), rendered June 5, 2019, convicting defendant of robbery in the first degree (two counts), criminal possession of a weapon in the second degree (two counts), and grand larceny in the fourth degree, and sentencing him, as a persistent violent felony offender, to an aggregate term of 20 years to life, unanimously affirmed.

The hearing court properly denied defendant's motion to suppress.  There is no basis for disturbing the court's credibility determinations (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977]).  The People established, by clear and convincing evidence, that the police entered the apartment with the consent of defendant's mother, and that the circumstances were not unduly coercive (see People v. Gonzalez, 39 N.Y.2d 122, 128–131, 383 N.Y.S.2d 215, 347 N.E.2d 575 [1976]).  The police acted within what reasonably appeared to be the scope of the mother's consent (see People v. Gomez, 5 N.Y.3d 416, 419, 805 N.Y.S.2d 24, 838 N.E.2d 1271 [2005]) in following the mother to defendant's bedroom.  The hearing evidence also established that defendant was not arrested in his home, but was taken into custody only after leaving the apartment, when outside on the sidewalk;  thus, there was no Payton violation (Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 [1980]).  Alternatively, we find that even if there had been an unlawful warrantless arrest in defendant's home, the recovery of defendant's cell phone occurred at the precinct and was sufficiently attenuated from any Payton violation (see People v. Jones, 21 N.Y.3d 449, 455, 971 N.Y.S.2d 740, 994 N.E.2d 831 [2013]).  Further, while the police had probable cause to arrest defendant and a lawful purpose to seek him out, there is no category of Payton violations based on the subjective intent of the police (see People v. Garvin, 30 N.Y.3d 174, 187–188, 66 N.Y.S.3d 161, 88 N.E.3d 319 [2017], cert denied 586 U.S. 814, 139 S.Ct. 57, 202 L.Ed.2d 20 [2018]).

Although we conclude that there was no Payton violation, we also find that defendant's confession was attenuated from any such violation (see People v. Harris, 77 N.Y.2d 434, 437, 568 N.Y.S.2d 702, 570 N.E.2d 1051 [1991]).  The gap of 91/212 hours from defendant's initial apprehension at about 7:00 a.m. and the start of the interview at about 4:30 p.m., and the fact that the interview was conducted at the precinct by detectives that had not been involved in apprehending him, supported a finding of attenuation (see People v. Grant, 195 A.D.3d 529, 145 N.Y.S.3d 788 [1st Dept. 2021], lv denied 37 N.Y.3d 1027, 153 N.Y.S.3d 421, 175 N.E.3d 446 [2021];  People v. Fashaw, 134 A.D.3d 490, 491, 21 N.Y.S.3d 235 [1st Dept. 2015], lv denied 27 N.Y.3d 1131, 39 N.Y.S.3d 113, 61 N.E.3d 512 [2016]).

It was error for the court not to have precluded, on the ground of lack of CPL 710.30(1)(a) notice, defendant's statement, “That's me,” when shown a still photograph from the surveillance footage, since the “sum and substance” (People v. Lopez, 84 N.Y.2d 425, 428, 618 N.Y.S.2d 879, 643 N.E.2d 501 [1994]) of that statement was not provided by the noticed statements.  The noticed statement, “I'd rather not sign the photos,” did not indicate that it was a photograph of defendant that he did not want to sign.  Nevertheless, the error in admitting the statement was harmless, and there was no significant probability that the jury would have acquitted defendant but for the error (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975]).

The court correctly determined that the People met their burden of proving, beyond a reasonable doubt (see People v. Macisaac, 214 A.D.3d 902, 185 N.Y.S.3d 314 [2d Dept. 2023]), that defendant's statements to the police, made after receiving and waiving Miranda warnings, were voluntary under the totality of circumstances (see generally Arizona v. Fulminante, 499 U.S. 279, 285–288, 111 S.Ct. 1246, 113 L.Ed.2d 302 [1991]).  That the detective mistakenly used a Miranda form that had the name and information of another individual, who knew defendant and had implicated him in the robbery, on the top of the form, did not affect the voluntariness of the Miranda waiver, where there was no evidence that either the detective or defendant noticed that information.

The court providently exercised its discretion in declining to reopen the suppression hearing (see CPL 710.40[4];  People v. Clark, 88 N.Y.2d 552, 555–556, 647 N.Y.S.2d 479, 670 N.E.2d 980 [1996]).  Defendant failed to make a showing of “additional pertinent facts” that would have materially affected the suppression ruling (see People v. Bazemore, 147 A.D.3d 698, 698–699, 48 N.Y.S.3d 135 [1st Dept. 2017], lv denied 29 N.Y.3d 1076, 64 N.Y.S.3d 165, 86 N.E.3d 252 [2017]).

Defendant's challenges to the denial of his motion to controvert the search warrant are unpreserved (see People v. Ayala, 225 A.D.3d 573, 574, 206 N.Y.S.3d 76 [1st Dept. 2024], lv denied 42 N.Y.3d 925, 240 N.E.3d 832 [1st Dept. 2024];  People v. Diallo, 217 A.D.3d 459, 460, 190 N.Y.S.3d 356 [1st Dept. 2023], lv denied 40 N.Y.3d 950, 195 N.Y.S.3d 669, 217 N.E.3d 690 [2023]).  Defendant claims that he should be excused from preservation because he lacked access to the warrant materials when he made his first two motions to controvert.  However, counsel received the warrant materials before the suppression hearing began, at which point she requested and was allowed to renew the motion to controvert.  Despite that opportunity, counsel never raised the claims now raised on appeal (see Ayala, 225 A.D.3d at 574, 206 N.Y.S.3d 76).  As an alternative holding, we find that the warrant was properly issued (see CPL 690.35[4][b]).

The court providently denied defendant's motion to suppress historical cell site location information for his cell phone.  The People obtained these records by court order under 18 USC § 2703(d), and upon reviewing defendant's motion, the court made a finding of probable cause.  Thus, we conclude that the order was effectively a warrant (see People v. Moalawi, 195 A.D.3d 523, 148 N.Y.S.3d 468 [1st Dept. 2021], lv denied 37 N.Y.3d 994, 152 N.Y.S.3d 424, 174 N.E.3d 364 [2021];  People v. Sorrentino, 93 A.D.3d 450, 451, 939 N.Y.S.2d 452 [1st Dept. 2012], lv denied 19 N.Y.3d 977, 950 N.Y.S.2d 360, 973 N.E.2d 770 [2012]), satisfying the standard set forth in Carpenter v. United States, 585 U.S. 296, 138 S.Ct. 2206, 201 L.Ed.2d 507 (2018).

We perceive no basis for reducing the sentence or for imposing it to run concurrently with a prior undischarged sentence on an unrelated crime.