People v. Shakeem B.

55 Misc. 3d 47, 51 N.Y.S.3d 779
CourtAppellate Terms of the Supreme Court of New York
DecidedJanuary 24, 2017
StatusPublished
Cited by4 cases

This text of 55 Misc. 3d 47 (People v. Shakeem B.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Shakeem B., 55 Misc. 3d 47, 51 N.Y.S.3d 779 (N.Y. Ct. App. 2017).

Opinion

OPINION OF THE COURT

Memorandum.

Ordered that the judgment adjudicating defendant a youthful offender is affirmed; and it is further ordered that the appeal from the amended judgment adjudicating defendant a youthful offender is dismissed as abandoned.

[49]*49Defendant, who was 17 years old, was charged with criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [1]) after the police had recovered a gun from a closet which they believed was in defendant’s bedroom.

At a pretrial Mapp hearing, New York City Police Officer Thomas Fusco testified that, at approximately 2:30 p.m. on May 22, 2012, he was with his partner and a sergeant, when he received a radio transmission that shots had been fired and that a male had been shot at 1305 Loring Avenue in Brooklyn. When Fusco arrived at the location, he observed medical personnel working on defendant, the person who had been shot. Fusco had met defendant during an investigation of a prior unrelated incident, although defendant had not been the target of that investigation. Defendant was taken to Brookdale Hospital.

About 30 minutes after they arrived at the location of the shooting, an unidentified black female civilian told the officers that defendant had been shot during an altercation. According to the civilian, who wanted to remain anonymous, defendant had entered the building at 1305 Loring Avenue with a firearm. At approximately 3:15 p.m., the officers went to apartment 1-C at 1305 Loring Avenue. Officer Fusco knew that defendant lived in that apartment because he had been there while investigating the prior incident. Fusco knocked on the door of the apartment, and defendant’s sister, who was 18 years old, answered the door. Fusco, who displayed his shield, recognized her from the prior investigation. None of the three officers had their guns drawn. They informed defendant’s sister that defendant had been shot, but she was already aware of that. She did not appear to be concerned or upset. Fusco told her that they were investigating whether there was a firearm in the location. No one else was home at the time. Defendant’s sister let the officers into the apartment. She signed a “consent to search” form after she had read the document and the officers had explained it to her. Fusco told her that the officers were there to remove a gun “if there was a possibility of it being there.”

Officer Fusco asked defendant’s sister to call her mother and to tell her mother, in the event she did not yet know, that defendant had been shot, that Fusco was investigating, and that Fusco had met the mother previously. One of the officers spoke to defendant’s mother and told her that they were investigating whether a firearm was at the location. She gave the officers “verbal consent over the phone to search.”

[50]*50The officers asked defendant’s sister where defendant slept. She led them to a bedroom. Fusco did not remember asking her whether anyone else slept in that bedroom. The room was messy. It contained men’s clothes, jeans, sweat shirts, and T-shirts with graphic prints. Fusco discovered a firearm, a .22 revolver, in the bedroom closet, under some clothing. Fusco also recovered “assorted live rounds” for different firearms and “two magazines of high capacity ammo feeders” for semiautomatic weapons. In addition, he discovered an envelope containing defendant’s name and address, and the address of an inmate in a correctional facility. The envelope was ripped on the side. Fusco did not know exactly where he had recovered the envelope. He did not remember what was inside the envelope.

After the gun, bullets, magazines, and envelope were recovered, defendant’s stepfather arrived at the apartment, and signed a consent to search form. The officers informed defendant’s stepfather of defendant’s condition and the reason why they were at the apartment.

During cross-examination, Fusco testified that his unit had been informed by the Kings County District Attorney’s Office “that there was an investigation in regard to consent to search forms.” Fusco did not recall whether defendant’s sister was told that she could refuse to sign the consent form.

Defendant presented no evidence and called no witnesses at the hearing.

Defendant’s counsel argued that the gun should be suppressed because “the request to search was not supported by founded circumstances of criminality.” The People did not satisfy their heavy burden of proving the voluntariness of the consent to search. There was no evidence of exigency or emergency. Furthermore, defendant’s sister lacked the authority to consent to the search of the bedroom. Counsel argued that the anonymous female civilian who told Officer Fusco that defendant had a gun did not exist and that Fusco’s testimony was not credible.

The hearing court found Officer Fusco’s testimony to be credible. The court determined that the information supplied by the unidentified woman provided at least an objective credible reason for the police to go to defendant’s home. However, even if the testimony “was a creation of the police,” defendant’s sister voluntarily gave the police consent to search the apartment. The court indicated that defendant’s sister, mother, and [51]*51stepfather, all of whom were adults who were not in custody or under arrest, consented to the search. They were not evasive or uncooperative. The police did not use force or coercion. The court concluded “that the consent was lawfully obtained” from “someone who had full authority to consent and that extended to the room that was the subject of the consent.”

The parties and the Criminal Court agreed to adopt the non-hearsay portions of the testimony of Officer Fusco for purposes of the trial. The court indicated that “the only issue” at trial was “whether or not [defendant] was in possession of a weapon that was allegedly found in his closet.”

Defendant moved to dismiss based on the lack of sufficient evidence that defendant knew he was in possession of a firearm, and that the People did not establish that defendant had physical or constructive possession of the firearm. The Criminal Court denied the motion.

During summation, counsel argued that, other than hearsay, there was no evidence presented that defendant lived in the apartment. While Officer Fusco had been in the subject apartment on a prior occasion, he had never seen defendant there. Defendant was not in the apartment when the firearm was recovered. Thus, the People did not prove beyond a reasonable doubt that defendant constructively possessed the gun. There was no testimony that the clothing in the bedroom was defendant’s. The envelope recovered from the bedroom had nothing inside it. While it contained defendant’s address, there was no apartment number or postmark.

The court found defendant guilty of criminal possession of a weapon in the fourth degree and adjudicated him a youthful offender. On January 3, 2013, the court sentenced defendant to a term of three years’ probation, and imposed a $200 mandatory surcharge. On July 15, 2013, defendant admitted to violating his probation. Upon an amended judgment adjudicating him a youthful offender, the court sentenced defendant to a term of three months of incarceration, which sentence has been served.

On appeal, defendant contends that the weapon should have been suppressed because the People failed to establish at the hearing that defendant’s sister had the authority to consent to the search of the apartment, or that she consented to the search of the bedroom.

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Cite This Page — Counsel Stack

Bluebook (online)
55 Misc. 3d 47, 51 N.Y.S.3d 779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-shakeem-b-nyappterm-2017.