The People v. Ramon Cabrera

• Court: New York Court of Appeals
• Decided: November 21, 2023
• Docket: 65
• Status: Published

Opinion

State of New York OPINION Court of Appeals This opinion is uncorrected and subject to revision before publication in the New York Reports.

No. 65 The People &c., Respondent, v. Ramon Cabrera, Appellant.

Barbara Zolot, for appellant. Joshua P. Weiss, for respondent. Hon. Letitia James, New York State Attorney General, intervenor.

HALLIGAN, J.:

Two primary issues are raised in this appeal. The first is whether, in light of the

U.S. Supreme Court’s recent decision in New York State Rifle & Pistol Assn., Inc. v Bruen,

142 S Ct 2111 (2022), New York’s criminal prohibition on the unlicensed public carry of

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a loaded firearm is unconstitutional (see Penal Law § 265.03 [3]). Because defendant

Ramon Cabrera’s Second Amendment arguments were not preserved as required by New

York law, we do not reach the merits of these constitutional challenges. The second is

whether Cabrera was in custody for purposes of Miranda v Arizona, 384 US 436 (1966),

when he was handcuffed and questioned by law enforcement officers. Because the

conclusion below that he was not in custody is unsupported by the record, we reverse and

remit the case for a new trial.

In August 2016, Cabrera was pulled over for speeding in South Carolina and

revealed to a police officer that he had firearms in his car and was driving to his mother’s

home in the Bronx. Although the defendant held a Florida license for the guns and was

legally permitted to possess them in South Carolina, the officer warned him that possession

of the guns would be unlawful in New York, and notified the Bureau of Alcohol, Tobacco,

Firearms and Explosives (ATF) about the defendant and his travel plans. That information

was relayed to New York City Police Department Detective Kevin Muirhead, who was

assigned to the ATF Joint Firearms Task Force. The South Carolina officer shared the

details of his encounter and Cabrera’s license plate number with Detective Muirhead, and

Muirhead determined that the car was registered to a Bronx address associated with

Cabrera’s mother.

Around 8:00 p.m. that evening, Detective Muirhead and two colleagues, Lieutenant

Peter Carretta and ATF Special Agent Adam Schultz, began a stakeout of the mother’s

residence. When Cabrera arrived at approximately 10:00 p.m., Detective Muirhead pulled

up behind his car. The officers exited their vehicle and approached the defendant as he

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emerged from his car. Muirhead identified himself as a police officer and asked for the

defendant’s name and his destination. Cabrera was “calm and cooperative,” and provided

his name and stated that the house belonged to his mother. Detective Muirhead later

testified that Cabrera was handcuffed, though he could not recall at what point in the

encounter the handcuffs were applied or who had done so.

When asked for identification, the defendant permitted one of the officers to retrieve

his wallet from the vehicle’s center console. In removing the driver’s license from the

wallet, the officer also found a Florida Concealed Carry Permit. Detective Muirhead then

asked Cabrera whether “there were any firearms in the vehicle [he] should be aware about”;

Cabrera informed him that there were three handguns and a rifle in the trunk and permitted

him to open it. Upon doing so, Detective Muirhead observed the top portion of a rifle. He

asked Cabrera whether he had a New York State Carry Permit, and Cabrera responded

“no.” Cabrera was then arrested and brought to the Task Force’s office, along with his

vehicle.

An hour and a half after the officers apprehended him, Cabrera was placed in an

interrogation room and his handcuffs were removed. Special Agent Schultz read Cabrera

each of the Miranda warnings from a form, and Cabrera acknowledged them by nodding

affirmatively, initialing next to each warning, and signing the bottom of the form.

Detective Muirhead then read to Cabrera from a “consent to search” form, which informed

him that, among other things, he had the right to refuse to give consent, that he could

withdraw his consent at any time before the search’s termination, that any contraband

found during the search could be used against him, and that he could consult with an

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attorney before he consented to the search. While apprising Cabrera of both the Miranda

waiver and “consent to search” form, Special Agent Schultz referred to them as

“formalit[ies]” and suggested the search needed to be completed before the car could be

returned to the defendant’s mother. When asked if he was authorizing the search of the

car, Cabrera nodded affirmatively and signed the form. Immediately after, Cabrera said he

wanted a lawyer and no further questioning occurred. Cabrera did not, however, withdraw

his consent to the search or ask to consult with an attorney about the search. Given

Cabrera’s consent, Detective Muirhead searched the trunk, recovering a disassembled rifle,

three handguns, and several boxes of ammunition.

Cabrera later moved to suppress both the statements he made to police while

handcuffed and the physical evidence found in his vehicle. He argued that he had been

placed in custody when “confronted by three officers who immediately handcuff[ed] him”

and that the officers failed to read him his Miranda rights prior to questioning him. He

further argued that he never voluntarily consented to a search of the vehicle because his

initial verbal consent was involuntary and a fruit of an improper custodial interrogation,

and the consent form signed at the Task Force’s office was tainted by the prior unlawful

custodial interrogation and involuntary in light of certain comments by the police.

Supreme Court denied the suppression motion. The Court assumed, as the People

conceded it should, that Cabrera was handcuffed before he was questioned, but it

nonetheless concluded that the detective was permitted to question Cabrera without first

issuing Miranda warnings. The handcuffing, the Court explained, ensured the officers’

safety and “did not transform the encounter into a full-blown arrest requiring probable

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cause.” The court further concluded that under the totality of the circumstances, both the

defendant’s on-scene consent to search his trunk and written consent at the office were

voluntary.

Cabrera pleaded guilty to one count of criminal possession of a weapon in the

second degree (Penal Law § 265.03 [3]). The Appellate Division rejected Cabrera’s

suppression claims and affirmed the judgment. It held that the hearing court correctly

determined that even if the defendant was handcuffed when he was questioned about the

guns outside his mother’s house, the handcuffing did not elevate what was otherwise an

investigatory detention to custody for Miranda purposes, and thus the officers did not first

have to provide Miranda warnings before questioning Cabrera about the guns. The court

also rejected Cabrera’s challenge to admission of the physical evidence, noting that the

officers acquired probable cause to search the vehicle under the automobile exception once

the defendant admitted to possessing the firearms. Further, the court agreed with Supreme

Court’s conclusion that Cabrera voluntarily consented to a search of his car both at the

scene and in the Task Force office. A Judge of this Court granted Cabrera leave to appeal.

On appeal to this Court, Cabrera claims to have been in custody for Miranda

purposes when he was handcuffed and asks this Court to adopt a rule that a handcuffed

person is per se in custody for purposes of Miranda. He further contends that there is no

record support for the Appellate Division’s finding that he was not in custody under the

circumstances and that both his oral and written consent to the search were tainted by the

Miranda violation and independently involuntary. In addition, the defendant raises several

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constitutional challenges to his conviction and sentence for the first time on appeal to this

Court in light of the Supreme Court’s recent decision in Bruen.

I.

We begin with Cabrera’s Second Amendment challenges. Cabrera argues that,

because Penal Law § 265.03 (3) criminalizes unlicensed possession of a firearm, the

constitutionality of that statute necessarily rose or fell with the constitutionality of the

licensing regulations in effect at the time he was charged. In his view, the U.S. Supreme

Court’s decision in Bruen rendered unconstitutional the entirety of New York’s licensing

regime, and that in turn meant that Penal Law § 265.03 (3) was facially unconstitutional.

Cabrera further argues that the statute is unconstitutional as applied to him on several

grounds. He contends that because he was able to obtain a valid gun license in Florida, we

must assume that New York’s proper cause requirement alone made his unlicensed

possession criminal. Cabrera also alleges a violation of his right to travel under the

Privileges and Immunities Clause based on what he construes as a residency requirement

for New York licenses. Finally, Cabrera argues that the felony classification and

authorized sentencing range for violations of Penal Law § 265.03 (3) violate the Second

Amendment, Eighth Amendment, Due Process Clause, and Equal Protection Clause in

light of Bruen.

It is undisputed that Cabrera did not raise these constitutional arguments before the

trial court, as is generally required to preserve such challenges for this Court’s review (see

People v Baumann & Sons Buses, Inc., 6 NY3d 404, 408 [2006]; see also e.g. People v

Davidson, 98 NY2d 738, 739 [2002] [“Because defendant’s constitutional challenge to the

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loitering statute was made for the first time on his motion pursuant to CPL 330.30, it was

not properly preserved”]). Cabrera nonetheless argues that his lack of preservation should

be excused, claiming that it would have been “futile, if not frivolous,” to challenge Penal

Law § 265.03 (3) prior to Bruen.

Unlike the trial courts and the Appellate Division, this Court’s jurisdiction is limited

to “questions of law” (NY Const art VI, § 3; People v Turriago, 90 NY2d 77, 80 [1997]).

We have long maintained that, absent certain limited exceptions, a reviewable question of

law exists only if it was presented to the trial court in the first instance; generally, “points

which were not raised at trial may not be considered for the first time on appeal” (People

v Thomas, 50 NY2d 467, 471 [1980]; CPL 470.05 [2]). This rule helps ensure that errors

are avoided or corrected at the earliest possible opportunity (see People v Hunter, 17 NY3d

725, 727-728 [2011]; see also People v Peque, 22 NY3d 168, 183 [2013]). It also gives

the parties an essential opportunity to probe relevant factual and legal issues, thereby

ensuring that the record before this Court reflects a full airing of the points that bear upon

an ultimate merits determination (see e.g. People v Martin, 50 NY2d 1029, 1031 [1980]

[no preservation exception where record was not developed as to existence of exigent

circumstances that may have justified warrantless arrest]). Preservation of a constitutional

challenge, in particular, “ensures that the drastic step of striking duly enacted legislation

will be taken not in a vacuum but only after the lower courts have had an opportunity to

address the issue and the unconstitutionality of the challenged provision has been

established beyond a reasonable doubt” (see Baumann & Sons Buses, 6 NY3d at 408, citing

Matter of Van Berkel v Power, 16 NY2d 37, 40 [1965]). For these reasons, we have

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carefully guarded the preservation rule against “erosion” (People v Mack, 27 NY3d 534,

540-541 [2016]).

One “very narrow exception,” termed the “mode of proceedings” exception, allows

a defendant to raise unpreserved challenges to “the essential validity of the proceedings

conducted below” by alleging “error[s] that would affect the organization of the court or

the mode of proceedings proscribed by law” (People v Patterson, 39 NY2d 288, 295-296

[1976]). In Patterson, the defendant relied on a U.S. Supreme Court decision issued during

the pendency of his appeal (Mullaney v Wilbur, 421 US 684 [1975]) to argue that he was

unconstitutionally forced to bear the ultimate burden of persuasion on his extreme

emotional disturbance defense to murder. We underscored the critical importance of

preserving objections before the trial court, but nonetheless held that the error asserted fit

within a “mode of proceedings” exception and was therefore reviewable. Cabrera does not

argue that his Second Amendment arguments fall within this “tightly circumscribed class”

(People v Kelly, 5 NY3d 116, 120 [2005]) of nonwaivable errors (cf. People v David

[decided today]).

Patterson also noted that at the time of the defendant’s trial, “there was no doubt in

this State that the . . . affirmative defense was constitutionally valid” (Patterson, 39 NY2d

at 296), and “no intimation that the homicide provisions might be vulnerable to serious

constitutional challenge” (id. at 294). Although we had previously rejected a general

exception to our preservation requirement based on a change in the law (see People v

Reynolds, 25 NY2d 489, 495 [1969], citing O’Connor v Ohio, 385 US 92 [1966]), we stated

that “[t]he defendant’s failure to object . . . cannot deprive him of the right to attack that

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practice when an intervening Supreme Court decision calls that practice into question”

(Patterson, 39 NY2d at 296).

Cabrera relies on this passage of Patterson, contending that his unpreserved Bruen-

based challenges are reviewable “because they are based on an intervening Supreme Court

decision that overruled binding precedent after judgment was entered,” and the dissent in

People v Garcia, decided today, takes the same view. In addition to Patterson, Cabrera

points to People v Baker, 23 NY2d 307 (1968), in which this Court reviewed the merits of

an unpreserved claim under the Confrontation Clause. At the time of trial, the claim in

Baker had been squarely foreclosed by Delli Paoli v United States, 352 US 232 (1957), but

Delli Paoli was subsequently overruled by Bruton v United States, 391 US 123 (1968).

Again relying upon O’Connor, we concluded that “[t]he error cannot be ignored upon the

ground that no proper objection was made since in this pre-Bruton case their admission

under limiting instructions was proper” (Baker, 23 NY2d at 317 [citation omitted]).

To the extent Patterson and Baker can be read as setting forth a “futility” exception

where an intervening U.S. Supreme Court precedent gives rise to a constitutional claim

previously foreclosed by this Court’s precedent, such an exception is not warranted here.

Both Patterson and Baker relied upon O’Connor, a decision in which a state high court

refused to consider a claim on the ground it was barred by a state procedural rule after the

U.S. Supreme Court had granted certiorari, vacated, and remanded to the state court to

carry out exactly that task. Then just one year after Patterson, the U.S. Supreme Court

clarified that States, if they wish, may enforce their “normal and valid” procedural rules,

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like preservation, to bar review of claims based on intervening U.S. Supreme Court

precedent (Hankerson v North Carolina, 432 US 233, 244 n 8 [1977]).

In the years following Patterson, we consistently required preservation in a series

of cases presenting constitutional claims based on intervening U.S. Supreme Court

precedent. In People v Thomas, 50 NY2d 467 (1980), we held that an intervening U.S.

Supreme Court decision will not excuse preservation if the claim previously foreclosed

under the Federal Constitution was already available under state law. There, the Appellate

Division had relied on Patterson in reviewing an unpreserved error regarding a jury charge

on intent. The defendant argued that the charge violated the U.S. Supreme Court’s

intervening decision in Sandstrom v Montana, 442 US 510, 513 (1979), by including a

presumption that effectively absolved the People from proving an essential element of the

crime. This Court reversed, explaining that the charge in Sandstrom had long been held

erroneous under state law (see Thomas, 50 NY2d at 472). As for the defendant’s claim

that Sandstrom now made the charge unconstitutional under federal law, we held that “the

rule requiring a defendant to preserve his points for appellate review applies generally to

claims of error involving Federal constitutional rights” (Thomas, 50 NY2d at 473). We

further noted with approval the U.S. Supreme Court’s instruction in Hankerson that “when

the defendant claims, for the first time on appeal, that the court’s charge erroneously shifted

the burden of proof, the State courts are free to enforce ‘the normal and valid rule that

failure to object to a jury instruction is a waiver of any claim of error’ ” (id., quoting

Hankerson v North Carolina, 432 US 233, 244 n 8 [1977]).

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Both before and after Patterson, we have explained that preservation is essential

where the failure to raise a claim in the court of first instance means that the appellate

record is inadequate to fairly assess the merits, even if governing law was altered by an

intervening Supreme Court decision. For example, in People v Martin, 50 NY2d 1029,

1031 (1980), the defendant sought review of an unpreserved claim that he had been arrested

inside his home without a warrant in violation of the rule announced a few months earlier

in Payton v New York, 445 US 573 (1980). Payton changed the law in New York, which

at the time of the defendant’s trial allowed warrantless arrests inside the home even absent

exigent circumstances. We concluded that the defendant’s failure to raise his constitutional

challenge before the trial court “deprive[d] the People of a fair opportunity to present their

proof on th[e] issue” of exigent circumstances, rendering the record “inadequate to permit

the appellate court to make an intelligent determination on the merits,” and thus did not

review the unpreserved claim (Martin, 50 NY2d at 1031). Other cases reach a similar

conclusion (see People v Gonzalez, 55 NY2d 887, 888 [1982] [same]; People v Gates, 24

NY2d 666, 669-670 [1969] [not reaching unpreserved claim under Davis v Mississippi,

394 US 721 (1969), because failure to timely object deprived People of opportunity to

establish lawful grounds for arrest]; People v Friola, 11 NY2d 157, 158-160 [1962] [not

reaching unpreserved claim under Mapp v Ohio, 367 US 643 (1961), because record

contained no inquiry as to lawfulness of alleged search and seizure]).

These cases demonstrate the high bar for excusing preservation on the basis of an

intervening U.S. Supreme Court decision. There can be little doubt that Bruen effected a

dramatic change in how States may regulate possession of guns in public, or that this

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Court—like others around the nation—will face an array of significant questions in its

wake.1 On that point, we agree with the dissent in Garcia. But as with virtually all our

prior cases regarding unpreserved constitutional challenges, adjudication of those issues

will have to await a case in which they have been duly preserved.

Several factors lead us to this conclusion. First, unlike the Confrontation Clause

claim raised in Baker, Cabrera’s Second Amendment claims were not foreclosed by

binding precedent from this Court or the U.S. Supreme Court at the time of trial. Defendant

points to intermediate appellate authority upholding the proper cause requirement that

Bruen abrogated (see e.g. Matter of Corbett v City of New York, 160 AD3d 415 [1st Dept

1 See e.g. United States v Daniels, 77 F4th 337 (5th Cir Aug. 9, 2023) (federal statute prohibiting firearm possession by unlawful users of controlled substance unconstitutional as applied to marijuana user); Range v Attorney Gen. United States of Am., 69 F4th 96 (3d Cir June 6, 2023) (en banc) (federal felon-in-possession statute unconstitutional as applied to defendant with felony welfare fraud conviction); United States v Rahimi, 61 F4th 443 (5th Cir 2023), cert granted 143 S Ct 2688 (June 30, 2023) (federal statute prohibiting firearm possession by persons subject to domestic violence restraining order is not consistent with historical tradition and thus facially unconstitutional); United States v Bullock, No. 18-CR-165-CWR-FKB, ___ F Supp 3d ___, 2023 WL 4232309 (SD Miss June 28, 2023) (federal felon-in-possession law unconstitutional as applied to defendant with prior aggravated assault and manslaughter convictions); United States v Price, 635 F Supp 3d 455 (SD W Va Oct. 12, 2022) (federal statute prohibiting possession of a firearm with removed, obliterated or altered serial number facially unconstitutional); Firearms Policy Coalition, Inc. v McCraw, 623 F Supp 3d 740 (ND Tex Aug 25, 2022), app dismissed sub nom. Andrews v McCraw, No. 22-10898, 2022 WL 19730492 (5th Cir Dec. 21, 2022) (Texas criminal prohibition on handgun carry by individuals aged 18 to 20 years old facially unconstitutional); Commonwealth v Guardado, 491 Mass 666, 206 NE3d 512 (Mass Apr 13, 2023) (convictions for unlawful possession of firearm and ammunition violated rights under Second Amendment and Due Process Clause where jury was not instructed that lack of licensure was essential element of offense).

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2018]), but even in the face of adverse Appellate Division precedent, litigants are expected

to preserve their constitutional challenges to facilitate potential review by this Court.

Cabrera also calls our attention to Kachalsky v County of Westchester, 701 F3d 81

(2012), and People v Hughes, 22 NY3d 44 (2013). While acknowledging that “[a] number

of courts and academics[ ] take the view that Heller’s reluctance to announce a standard of

review is a signal that courts must look solely to the text, history, and tradition of the

Second Amendment,” the Second Circuit in Kachalsky concluded that means-end

intermediate scrutiny applied to public carry of firearms and upheld the proper cause

requirement later invalidated in Bruen (Kachalsky, 701 F3d at 89 n 9). As with any federal

circuit court ruling, Kachalsky did not bind this Court.

In Hughes, this Court considered a Second Amendment challenge to the

classification of criminal possession of a weapon in the second degree (Penal Law § 265.03

[3]) as a felony. Notably, the defendant did not contest the State’s authority to treat his

conduct as a crime. Instead, he objected to the relative severity of punishment imposed.

In rejecting the contention that the Second Amendment barred classifying unlawful

possession as a felony, we emphasized that “New York’s criminal weapon possession laws

prohibit only unlicensed possession of handguns,” and held that if any Second Amendment

scrutiny applied to the severity of punishment for concededly unlawful conduct,

intermediate scrutiny was appropriate (id. at 50-51). Deeming that standard satisfied, the

Court concluded that the sentence imposed on Hughes was not constitutionally infirm (id.

at 51).

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At the time of Cabrera’s conviction in January 2018 and appeal to the Appellate

Division in early 2022, neither this Court nor the U.S. Supreme Court had determined

whether New York’s proper cause requirement violated the Second Amendment. While

Hughes could fairly be read to adopt intermediate scrutiny in the Second Amendment

context, as the dissent in Garcia notes (Garcia, decided today, dissenting op at 11), it did

not consider the proper cause requirement or address any of the Second Amendment

arguments the defendant now asks us to consider: whether the Second Amendment

invalidates a conviction for unlicensed possession where the licensing scheme includes a

proper cause requirement; whether New York’s licensing scheme imposes a residency

requirement and, if so, whether the Second Amendment bars that condition; or whether the

Second Amendment precludes classification and sentencing disparities between in-home

and public possession.

Moreover, unlike the challenge to the affirmative defense in Patterson, the

arguments that Cabrera now presses were not unanticipated at the time of his trial. Bruen

rested on the U.S. Supreme Court’s prior decisions in District of Columbia v Heller, 554

US 570 (2008) and McDonald v City of Chicago, 561 US 742 (2010). Those rulings did

not speak directly to how the Second Amendment right applied outside the home or resolve

the appropriate level of scrutiny, and it is clear that early on, some courts and individual

judges viewed Heller as dispensing with means-end scrutiny—just as the Supreme Court

eventually held in Bruen (see Ezell v City of Chicago, 651 F3d 684, 708 [7th Cir 2011]

[applying more rigorous scrutiny to Second Amendment challenge to Chicago’s

prohibition on firing ranges]; Heller v District of Columbia, 670 F3d 1244, 1271 [DC Cir

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2011] [Kavanaugh, J., dissenting] [“Heller and McDonald leave little doubt that courts are

to assess gun bans and regulations based on text, history, and tradition, not by a balancing

test such as strict or intermediate scrutiny”]; Moore v Madigan, 702 F3d 933, 937, 942

[7th Cir 2012] [Circuit Court was “bound by the Supreme Court’s historical analysis” as

“central” to Heller, therefore holding the Second Amendment applied outside the home];

Peruta v County of San Diego, 742 F3d 1144, 1167, 1173-1175, 1179 [9th Cir 2014], revd

on reh en banc, 824 F3d 919 [9th Cir 2016] [opining that the Second Circuit did not

properly grapple with history in Kachalsky and that the gun regulations at issue in Drake,

Woollard, and Kachalsky should have been struck down even under intermediate scrutiny];

Kanter v Barr, 919 F3d 437, 451 [7th Cir 2019] [Barrett, J., dissenting] [arguing a

categorical felony ban on lawful handgun possession was unconstitutional because

“(f)ounding-era legislatures did not strip felons of the right to bear arms simply because of

their status as felons”]).

Notably, by 2017, the U.S. Court of Appeals for the D.C. Circuit had invalidated

the District of Columbia’s “proper cause” licensing requirement and interpreted Heller as

“dispens[ing] with tiers of scrutiny in striking down a ban on possession by almost

everyone” (Wrenn v District of Columbia, 864 F3d 650, 664 [DC Cir 2017]). Both before

and after Wrenn was decided, some New York litigants directly attacked Kachalsky as

wrongly decided under Heller and McDonald. For example, in May 2013, the New York

State Rifle & Pistol Association challenged a New York City rule regarding firearm

transport and New York’s gun licensing regime. Relying on Heller’s historical analysis,

the plaintiff contended that the right to transport and possess guns outside a primary

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residence was a “core” Second Amendment right, and that Kachalsky erred in applying

intermediate scrutiny (New York State Rifle & Pistol Assn. v City of New York, 86 F Supp

3d 249, 259 [SDNY 2015], affd sub nom. New York State Rifle & Pistol Assn., Inc. v City

of New York, 883 F3d 45 [2d Cir 2018], vacated and remanded sub nom. New York State

Rifle & Pistol Assn., Inc. v City of New York, New York, 140 S Ct 1525 [2020] [hereinafter

NYSRPA v CNY]; see also Osterweil v Bartlett, 706 F3d 139 [2d Cir 2013] and Osterweil

v Bartlett, 21 NY3d 580, 587 [2013] [assessing a related constitutional challenge to New

York’s gun licensing regime]).

After the federal district court granted summary judgment to New York City and

the Second Circuit affirmed, the U.S. Supreme Court granted certiorari in January 2019 to

evaluate the constitutionality of the challenged city and state regulations. Although the

Supreme Court later dismissed the case as moot following an amendment to the relevant

statute and regulation (see NYSRPA v CNY, 140 S Ct 1525, 1526 [2020]), the dissents and

concurrence raised serious doubts about the means-ends test, relied heavily on the historical

reasoning laid out in Heller, and noted the Court’s eagerness to revisit the issue (id. at 1527

[Kavanaugh, J., concurring] [agreeing with Justice Alito’s dissent that federal and state

courts should refocus on historical analysis and signaling that “(t)he Court should address

that issue soon”]). The Bruen plaintiffs themselves took a similar approach, explicitly

arguing in their February 2018 complaint that Kachalsky “was wrongly decided” and that

it should be overruled (see also Libertarian Party of Erie County v Cuomo, 970 F3d 106,

127 [2d Cir 2020] [noting plaintiffs contended that “Kachalsky was wrongly decided”]).

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Given these developments, we cannot conclude that the potential success of these

arguments was so unanticipated as to excuse preservation.

Second, unlike the intervening decisions relied upon in Baker and Patterson, Bruen

did not directly address the constitutional questions that Cabrera now seeks to raise. Bruen

ruled that New York’s proper cause standard for issuance of public carry licenses violates

the Second and Fourteenth Amendments (Bruen, 142 S Ct at 2122, 2126, 2137). It did not

address the rest of New York’s licensing scheme or the interplay between the invalidation

of New York’s proper cause requirement and state statutes criminalizing unlicensed

possession of a firearm, as the dissent in Garcia acknowledges (Garcia, decided today,

dissenting op at 16). In fact, several of the Bruen concurrences explicitly noted that the

opinion “decide[d] nothing about who may lawfully possess a firearm or the requirements

that must be met to buy a gun” (id. at 2157 [Alito, J., concurring]); that it did “not prohibit

States from imposing licensing requirements for carrying a handgun” (id. at 2161

[Kavanaugh, J., concurring]); and that it did not “cast doubt on longstanding prohibitions

on the possession of firearms by felons and the mentally ill” (id., quoting Heller, 554 US

at 626-627). For this reason, the circumstances of this case are distinguishable from those

presented in O’Connor, on which we relied in both Patterson and Baker.

Third, and critically, the failure to preserve Second Amendment challenges in the

court of first instance stymied the development of a record that would allow for careful and

deliberate adjudication on the merits of constitutional challenges presented to us (see

Martin, 50 NY2d at 1031). The advent of the one-step history and tradition test does not,

alone, compel the conclusion that New York’s criminal possession of a weapon statutes

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are facially unconstitutional. Rather, that determination must be made by closely analyzing

historical analogues to assess whether our modern regulations are consistent with historical

tradition. The nature of that complex inquiry only underscores the importance of

preservation (see United States v Bullock, No. 18-CR-165-CWR-FKB, ___ F Supp 3d ___,

2023 WL 4232309 [SD Miss June 28, 2023] [noting difficulty of judicial analysis of

historical analogues without benefit of expert reports or amicus briefs]). By way of

comparison, when the U.S. Supreme Court considered a single component of New York’s

licensing scheme in Bruen, it had the benefit of an extensive record, hundreds of pages of

briefing on historical analogues and over 80 amici submissions. We simply do not have

the record, at this juncture, to give the constitutional questions regarding Penal Law §

265.03 (3) the careful consideration they deserve. To the extent that the classification and

sentencing disparities between offenses involving in-home and public possession must be

justified as consistent with historical tradition, the record before us likewise does not permit

a meaningful determination on the merits (see Martin, 50 NY2d at 1031).

Cabrera’s as-applied challenges are unreviewable for a similar reason. His failure

to preserve his Second Amendment claim deprived the government of the opportunity to

argue that he would have been otherwise ineligible to obtain a license and thus was not

aggrieved by the proper cause requirement. Nor are we persuaded that because he obtained

a valid out-of-state license it must be presumed that he would have met all of the

constitutionally valid requirements for licensure in this State. The defendant himself

acknowledges that New York’s licensing scheme is more onerous than Florida’s (and we

note that more onerous does not necessarily mean unconstitutional). Finally, the record

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has not been adequately developed as to whether the defendant meets any purported

residency requirement imposed by the State’s licensing scheme, which precludes review

of his claim under the Privileges and Immunities Clause. To the extent Cabrera raises an

Eighth Amendment claim, that too is subject to the preservation requirement.

For the above reasons, we do not reach the merits of Cabrera’s constitutional

challenges on an underdeveloped record and without the benefit of the careful

consideration by the courts and the parties below.2 We take no position on whether Cabrera

would have had standing to bring his Bruen claims had he timely raised them, or on the

merits of the various Bruen claims addressed in the dissent to People v Garcia (decided

today).

II.

We turn now to the question regarding whether Cabrera was in custody for purposes

of Miranda when he was handcuffed and questioned by law enforcement officers in his

mother’s driveway, and whether his subsequent consents to a search of his vehicle were

valid (see Miranda v Arizona, 384 US 436 [1966]).

Cabrera contends that the lower courts erred in concluding that he was not in custody

for purposes of Miranda when he was handcuffed outside his mother’s house, and that his

statements regarding the firearms in his vehicle and his lack of a New York license should

have been suppressed accordingly. Miranda warnings must be administered when an

2 Consistent with this Court’s practice, remittal is not available to develop a claim that is otherwise unreviewable on preservation grounds.

- 19 - - 20 - No. 65

interrogation occurs “after a person has been taken into custody or otherwise deprived of

his freedom of action in any significant way” (id.). Not every stop constitutes custody for

purposes of Miranda. To ascertain custodial status, we must consider “whether a

reasonable person innocent of any wrongdoing would have believed that he or she was not

free to leave” (People v Paulman, 5 NY3d 122, 129 [2005]), and whether there has been a

“forcible seizure which curtails a person’s freedom of action to the degree associated with

a formal arrest” (People v Morales, 65 NY2d 997, 998 [1985], citing Berkemer v McCarty,

468 US 420 [1984]; see also People v Bennett, 70 NY2d 891, 894 [1987] [“When a seizure

of a person . . . does not constitute a restraint on his or her freedom of movement of the

degree associated with a formal arrest, Miranda warnings need not be given”]).

While the Appellate Division’s determination that Cabrera was not in custody for

Miranda purposes must be affirmed if supported by the record (see Paulman, 5 NY3d at

129), a reasonable innocent person in Cabrera’s position could not have felt free to leave

when three law enforcement officers approached him at night, on a residential street, and

handcuffed him before questioning him about the firearms in his vehicle. The level to

which the police restricted Cabrera’s movement was of a degree associated with a formal

arrest. Nor does the record suggest that the defendant had any reason to believe that he

would be handcuffed only for a limited duration. We therefore conclude that there is no

record support for the conclusion of the courts below that Cabrera was not in custody for

Miranda purposes. On appeal, the People have conceded that the defendant was subject to

interrogation and that they did not argue below that the public safety exception applied.

- 20 - - 21 - No. 65

Custodial status is therefore dispositive; in the absence of warnings, his statements should

have been suppressed.

In reaching this conclusion, we decline to adopt a per se rule that the use of

handcuffs places an individual in custody for purposes of Miranda in all instances. In prior

decisions, we have stressed that the custodial status analysis is inherently fact-specific, as

it turns on the point of view of a reasonable person innocent of any wrongdoing under the

circumstances (see e.g. Paulman, 5 NY3d at 129; Harris, 48 NY2d at 215; Yukl, 25 NY2d

at 589). In only one circumstance—where a defendant is interrogated “at gun point”—has

this Court indicated that the defendant is in custody for Miranda purposes as a matter of

law (People v Shivers, 21 NY2d 118, 120 [1967]; see also People v Huffman, 41 NY2d 29,

34 [1976]). Admittedly, there may be very few circumstances where a handcuffed person

is not in custody for purposes of Miranda given the obvious physical constraint and

association with formal arrest. Thus, the use of handcuffs must appropriately be given very

substantial weight in this inquiry, but we do not believe it to be dispositive.

This approach accords with that adopted by other state and federal courts, which

have accorded significant—but not dispositive—weight to the use of handcuffs in assessing

whether an individual is in custody for purposes of Miranda. For example, the U.S. Court

of Appeals for the Second Circuit noted that “[h]andcuffs are generally recognized as a

hallmark of a formal arrest” but assessed their impact on the defendant in light of the

specific circumstances presented (United States v Newton, 369 F3d 659, 675, 677 [2d Cir

2004] [handcuffs were “the problematic factor in (that) set of circumstances” given that the

record had no indication that a person “in the (defendant’s) situation would have

- 21 - - 22 - No. 65

understood that the handcuffing would likely last only until the officers had completed

their search”]; see also United States v Martinez, 462 F3d 903, 909 [8th Cir 2006]

[defendant in custody, “considering the totality of the circumstances,” when he was

detained, patted down, questioned, and then “handcuffed and told he was being further

detained”]; State v Wilson, 142 NM 737, 747-748, 169 P3d 1184, 1194-1195 [2007]

[defendant in custody when handcuffed and placed in the back of a police car];

Commonwealth v Damiano, 422 Mass 10, 13, 660 NE2d 660, 662 [1996] [a person

“handcuffed in the back seat of a police cruiser in the middle of the night on a multi-lane

State highway” is in custody]; compare United States v Coulter, 41 F4th 451, 460 [5th Cir

2022] [handcuffed individual not in custody where officer informed the defendant he was

“going to detain (him)” so he did not “run up and grab the gun” and the defendant

“implicitly acknowledged the limited purpose of the restraint”]).

Given our holding that Cabrera was in custody and the undisputed fact that he had

not received Miranda warnings when he answered Detective Muirhead’s questions,

Supreme Court erred in denying his motion to suppress his responses regarding guns in the

car and his lack of a New York license. For that reason, Cabrera’s guilty plea should be

vacated (see People v Grant, 45 NY2d 366, 379-380 [1978]).

While Cabrera also challenges Supreme Court’s denial of his motion to suppress the

physical evidence found in his vehicle, the record supports the determinations below that

the defendant voluntarily consented to the search of his vehicle in writing at the Task Force

office. The burden of proving voluntariness lies with the People and is a question of fact

(see People v Kuhn, 33 NY2d 203, 208 [1973], quoting People v Whitehurst, 25 NY2d

- 22 - - 23 - No. 65

389, 391 [1969]). Relevant factors include whether the suspect was in custody at the time,

the number of officers present, the defendant’s background, whether the defendant was

restrained, whether the defendant aided or resisted law enforcement, and whether the police

advised the defendant of their right to withhold consent (see People v Gonzalez, 39 NY2d

122, 128 [1976]).

When the defendant signed the consent form at the Task Force office, he was in

police custody, but the record—both the video of the interaction and the testimony at the

suppression hearing—confirms that the handcuffs had been removed, he had been read his

Miranda warnings, he was calm and cooperative, and he had been specifically advised that

he could refuse to consent to the search or withdraw his consent once given.3 Additionally,

Detective Muirhead read the consent form aloud, including the provisions that required the

defendant’s consent be voluntary and stated his right to refuse or withdraw consent and

demand a search warrant. Immediately after signing the consent form, Cabrera invoked

his right to counsel, suggesting that he appreciated the rights covered in the Miranda

warnings and the consent form.

While Special Agent Schultz regrettably referred to the two forms as mere

“formalit[ies]” and suggested the car could be returned to the defendant’s mother once it

was searched, there is record support for the conclusion that those comments did not vitiate

the voluntariness of Cabrera’s consent in light of the indicia of voluntariness. Given that

3 Given that Cabrera was specifically advised that he could withdraw his consent to search his vehicle once given, his knowledge that the detective had already found the guns does not require a different conclusion. - 23 - - 24 - No. 65

Cabrera voluntarily gave written consent to the search at the office, we need not separately

assess whether the automobile exception applies or whether the oral consent the defendant

gave at the scene was voluntary and independently sufficient to allow admission of the

physical evidence.

To the extent that our case law on successive interrogations after a Miranda

violation applies to a consent to search, the voluntariness of Cabrera’s written consent was

not impermissibly tainted by the Miranda violation committed when he was initially

handcuffed. In determining whether there is a “single continuous chain of events” (People

v Chapple, 38 NY2d 112, 115 [1975]) or a “sufficiently ‘definite, pronounced break in the

interrogation’ to dissipate the taint from the Miranda violation” (Paulman, 5 NY3d at 131,

quoting Chapple, 38 NY2d at 115]), we have considered various factors as set forth in

People v Paulman (5 NY3d at 130-131). In Paulman, we held that Mirandized statements

made after an un-Mirandized statement were admissible given the different locations of the

interrogations, the different methods used to elicit information, a change in police

personnel, and the “marked change in the tenor of [the defendant’s] engagement with

police” (id. at 131).

Similar factors support our conclusion that the Miranda violation which occurred

when Cabrera was initially stopped and handcuffed did not render his later written consent

to search involuntary. The written consent was given at a different location than the prior

un-Mirandized statements, about ninety minutes later, and under much different

circumstances evincing a “change in . . . tenor” of Cabrera’s engagement with police (id.

- 24 - - 25 - No. 65

at 131).4 Most notably, he was not in handcuffs surrounded by several officers on the

street. These circumstances are distinguishable from the “single continuous chain of

events” in Chapple, in which an officer forced the defendant into his vehicle, took him to

the site of a burglary and questioned him, gave Miranda warnings, continued to question

him as he took the defendant to the sites of additional burglaries, took him to police

headquarters where he continued questioning, and obtained a confession (Chapple, 38

NY2d at 114).

* * *

Accordingly, the order of the Appellate Division should be reversed and the case

remitted to Supreme Court for further proceedings in accordance with this opinion.

4 There are factual distinctions between the circumstances of the subsequent interrogation in Paulman and the circumstances of the written consent to search here, but “[n]o one factor is determinative and each case must be viewed on its unique facts” (Paulman, 5 NY3d at 131). Particularly given the 90-minute lapse between the Miranda violation and the subsequent written consent at the Task Force office—a significantly longer interval than the approximately 30-minute interval between successive interrogations in Paulman—we conclude there was no “single continuous chain of events” here (Chapple, 38 NY2d at 115). - 25 - RIVERA, J. (dissenting):

The police had information that defendant Ramon Cabrera was driving across state

lines to his mother’s home in New York with weapons in the trunk of a car that was

registered to her. The police staked out her home, waiting for defendant. When he arrived,

police approached, handcuffed defendant, and then asked if he had weapons. Defendant

calmly and forthrightly responded he had a rifle and three handguns in the trunk, which,

with his consent, they opened and saw part of the rifle. In response to further questioning,

defendant stated that he did not have a New York carry permit. The officers then arrested

and took defendant to the precinct where law enforcement searched the car and retrieved

the weapons and ammunition from the trunk.

I agree with the majority that defendant was in custody when he was handcuffed

and before he was informed of his rights, and therefore his inculpatory responses to the

officer’s questioning should be suppressed (see majority op at 19). However, I would make

clear that, as a matter of law—and reality—any person placed in handcuffs is thereby in

custody and constitutionally entitled to Miranda warnings.

Contrary to the majority’s view, the record establishes that defendant did not

voluntarily consent to the search merely by signing a police form which the detective told

him was a “formality.” Therefore, the weapons and ammunition, in addition to the

statements, must also be suppressed. The prosecution cannot convict defendant without

this evidence and therefore the charging instrument should be dismissed.

Handcuffing is Custody for Miranda Purposes

To protect the Fifth Amendment right against self-incrimination, Miranda warnings

are mandated prior to the interrogation of a suspect who is in custody (Miranda v Arizona,

384 U.S. 436, 444, 457 [1966]). Custodial interrogation is “questioning initiated by law

enforcement officers after a person has been taken into custody or otherwise deprived of

his freedom of action in any significant way” (id. at 444). Miranda rights “become

applicable as soon as a suspect's freedom of action is curtailed to a ‘degree associated with

formal arrest’” (Berkemer v McCarty, 468 US at 440 [1984], quoting California v Beheler,

463 US 1121, 1125 [1983] [per curiam]; United States v Newton, 369 F3d 659, 676-677

[2d Cir 2004] [a person in handcuffs was in custody for Miranda purposes, even when the

police officers informed the defendant that they were not under arrest]). “Handcuffs are

generally recognized as a hallmark of a formal arrest” (United States v Newton, 369 F3d

659, 676-677 [2d Cir 2004], citing New York v Quarles, 467 US 664, 655 [1984]). While

handcuffing can be “reasonable to the officers’ investigatory purpose under the Fourth

Amendment, [it] nevertheless place[s the suspect] in custody for purposes of Miranda”

(United States v Newton, 369 F3d 659, 676-677 [2d Cir 2004], citing Berkemer, 468 US at

440).

Several armed officers stopped defendant late at night and placed him in handcuffs

based on information from out-of-state law enforcement that defendant was traveling with

unlicensed firearms. In response to the officers’ questions defendant admitted to having

weapons, without a carry permit, in the trunk of the car he was driving. The majority and I

are in full agreement that once defendant was handcuffed he was in custody for Miranda

purposes and therefore his subsequent inculpatory statements should have been suppressed

(see majority op at 19). However, unlike the majority, I take this opportunity to clarify that

any person placed in handcuffs is in custody as a matter of law, and therefore entitled to

Miranda warnings.

Handcuffs have a long, sordid history, including as a tool of bondage (United States

v Malebran, 26 F Cas 1145, 1146 [CCDNY 1820] [describing handcuffing as a chattel

slavery practice]). Today most people associate their use law enforcement, and recognize

the “two metal rings, joined by a short chain, that are locked around a prisoner’s wrists to

prevent free movement” (Cambridge Dictionary, handcuffs

[https://dictionary.cambridge.org/us/dictionary/english/handcuffs]).

Handcuffs are restraints, full stop. Indeed, handcuffs are commonly used to

physically restrain a person during an arrest (Burch v City of New York, 2016 WL

11430773, *6 [ED NY Apr. 22, 2016, No. 11CV2841CBAVMS], quoting NYPD Patrol

Guide Procedure No. 203-11 [“(a)fter an individual has been controlled and placed under

custodial restraint using handcuffs and other authorized methods” (emphasis added)]). But

a person may be placed in custody short of an arrest because, under our objective test, a

person is in custody when “a reasonable person innocent of wrongdoing would have

believed that [they are] not free to leave” (People v Paulman, 5 NY3d 122, 129 [2005];

People v Yukl, 25 NY2d 585, 589 [1969]). Once handcuffed, a person is in custody; they

cannot reasonably believe that they are free to leave. If they tried to leave, they would be

chased by law enforcement, all the while their wrists would be locked in metal. In fact,

New York defines the crime of “escape” as requiring “proof that defendant ‘escape[d] from

custody.’ ‘Custody,’ in turn, ‘means restraint by a public servant’” (People v Antwine, 8

NY3d 671, 674 [2007], citing Penal Law § 205.00 [2]).

The singular purpose of handcuffs is to restrain. Goals well understood by law

enforcement personnel in the field and the individuals they restrain with these “metal

bracelets.” Thus, there are obvious benefits to avoiding individualized determinations

when the common throughline in all cases is that handcuffs are the type of physical

restraints that the individual knows they cannot escape.

There is no situation in which handcuffing does not restrain an individual and

therefore handcuffing places the person restrained in custody under Miranda (People v

Quarles, 58 NY2d at 666 [suppressing unwarned statements of suspect who had been

frisked and handcuffed], revd on other grounds, New York v Quarles, 467 US 649 [1984]).

Neither this Court nor the United States Supreme Court has ever recognized an instance of

handcuffing that was not custody for purposes of Miranda (id., see also, e.g., Dunaway v

New York, 442 US 200, 215 & n 17 [1979] [describing handcuffing as a “trapping[] of a

technical formal arrest”])

The majority has chosen to continue the ad hoc, case-by-case approach to

handcuffing even though the Court has repeatedly extolled the benefits of bright line rules,

especially as regards the constitutionality of law enforcement practices. As we have

explained, “in addition to providing the rationale for resolution of particular cases, rules

give necessary guidance to lower courts and to police. Police officers are well served when

they are advised, in advance, as to whether their proposed conduct will be lawful” (People

v Gomez, 5 NY3d 416, 420 [2005]). We have “sought to provide and maintain ‘bright line’

rules to guide the decisions of law enforcement and judicial personnel who must understand

and implement our decisions in their day-today operations in the field” (People v Garcia,

20 NY3d 317, 323 [2012], quoting People v. P.J. Video, 68 NY2d 296, 304 [1986]).

The rule is readily understood, even in a fast-paced police encounter. If an officer

handcuffs someone, all they need do is advise the individual of their Miranda rights, or not

ask any questions until those warnings are administered. It’s as simple as that. The rule

does not undermine law enforcement. To the contrary, the rule ensures proper police

conduct. The benefits are obvious: ease of application in the field and in our courts;

reduction in the misapplication of Miranda; and confidence in law enforcement and our

judicial system.

Defendant Did Not Voluntarily Consent to a Vehicle Search

“Consent to search is voluntary when it is a true act of the will, an unequivocal

product of an essentially free and unconstrained choice. Voluntariness is incompatible with

official coercion, actual or implicit, overt or subtle” (People v Gonzalez, 39 NY2d 122,

128-129 [1976]).1 Courts have excluded evidence obtained by misstatements that create

uncertainty or confusion about an individual’s constitutional right to deny consent. For

example, in United States v Cruz, the federal district court held the consent to search

involuntary where a police officer stated he would otherwise clearly get a warrant if the

defendant did not consent to the search. The court explained that “public policy favors a

prophylactic rule of exclusion where law enforcement officers misstate facts” and where,

as in that case, the defendant was misinformed by the misrepresentation (United States v

Cruz, 701 F Supp 440, 447-448 [SD NY 1988]; cf. People v Dunbar, 24 NY3d 304 [2014]

1 The prosecution’s assertion that the decision here is controlled by United States v Patane (542 US 630 [2004]), which held that a lack of Miranda warnings on its own does not require suppression of the physical fruits of a suspect’s unwarned by voluntary statements, is unpreserved and unreviewable. -6- -7- No. 65

[finding a preamble to Miranda warnings, which was, “at best confusing and at worst

misleading,” made the Miranda warning inadequate and ineffective because it “undercut

the meaning of all four Miranda warnings, depriving (defendants) of an effective

explanation of their rights”]).

Here, after defendant’s arrest and transport to the precinct, and before he was

advised of his rights, Detective Muirhead referred to the Miranda warnings as “things we

need to go through, formalities, once we do that… we can get to the meat of things.”

Following the Miranda warnings, Detective Muirhead then read a vehicle search consent

form to defendant “just to search the vehicle,” adding that the form—like the waiver of the

Miranda warnings given moments before—was merely “another formality . . . for you and

us” and implying that they could not release the car to his mother until they completed the

search, stating:

“This next form is a consent to search. I kind of talked to you about it before. It’s just to search your vehicle. It’s another formality—it’s your mom’s car, and you want to give it back to her, and so this is something we gotta do, you know, for you and for us.”

By then it was almost midnight, an hour and a half after defendant was arrested in

his mother’s driveway, and hours after driving to New York.2

2 The majority cites People v Paulman (5 NY3d at 130-131) to assert that defendant voluntarily consented to the search at the precinct despite the previous un-Mirandized warnings, in part because of the “change . . . in tenor” of the interaction (majority op at 23). In Paulman, this Court declined to suppress a statement that was not “elicited as part of a single continuous chain of events,” stemming from a Miranda violation (id. at 132). Paulman distinguished People v Bethea (67 NY2d 364, 368 [1986]), where this Court found that “close sequence” of unwarned statements and later, warned statements warrants -7- -8- No. 65

Critically, when defendant signed the vehicle search form, he was aware that

Detective Muirhead knew about and saw the weapons. While handcuffed outside his

mother’s home, defendant himself told the detective that there were three guns and a rifle

in the trunk, and at the same time he gave the detective permission to open the trunk, which

he did and upon seeing part of the rifle he immediately arrested defendant. Thus, defendant

had no reason to doubt the detective’s statement that his signature on the form was a

formality, even though that mischaracterized the need for consent since earlier that night

defendant had admitted the presence of weapons and had already consented to Detective

Muirhead opening the trunk to look inside. Although we now hold that this consent was

obtained in violation of defendant’s rights and cannot be used against him, defendant did

not know that at the time he signed the form. The majority is incorrect to the extent it

suggests that defendant understood that the perfunctory language in the consent-to-search

form, which indicated he could withdraw consent, would prevent the admission of the gun

the officer had previously seen during the stop (majority op at 23). The futility of

withdrawing consent was further bolstered by the officer referring to the forms as necessary

before they could “get to the meat of things.” The confusion and uncertainty as to

suppression of both (id. at 132). However, in Paulman, the Court found that the change in tenor distinguishing the case from the “single continuous chain of events” in Bethea was based on several factors: the defendant initiated the initial interaction with police at his home, different police officers questioned the defendant at the precinct, and there was a long cessation of interrogation while the defendant ate a meal (id. at 132). Here, the factual scenario is directly opposite: the police initiated the initial interaction, the same police officers transported defendant to the precinct, and there was no significant gap in questioning for a meal. Contrary to the majority’s view (majority op. at 25), the record bears out that the “tenor” of the interactions between defendant and law enforcement remained the same throughout the evening. -8- -9- No. 65

defendant’s rights caused by the prior search and detective’s minimization of the

importance of the written consent was compounded by the suggestion that refusing to sign

would only further delay releasing the car to defendant’s mother (Matter of 2029 Hering

St., Bronx, NY, 464 F Supp 164, 172 [SD NY 1979] [finding that for “an average layperson”

one of the factors indicating that the consent was not voluntary but merely “submi[ssion]

to a claim of lawful authority” was the defendant “seeing her own property searched”]).

Under these circumstances, defendant did not voluntarily consent to the car search.

III.

Dismissal of the Indictment Is Required

Defendant’s statements as well as the weapons discovered in the trunk should have

been suppressed. Therefore, I would reverse and dismiss the indictment (People v Stokes,

32 NY2d 202, 207 [1973]).3

Order reversed and case remitted to Supreme Court, Bronx County, for further proceedings in accordance with the opinion herein. Opinion by Judge Halligan. Judges Garcia, Singas, Cannataro and Troutman concur. Judge Rivera dissents in an opinion, in which Chief Judge Wilson concurs.

Decided November 21, 2023

3 My conclusion that the indictment should be dismissed makes it unnecessary for me to address defendant’s Second Amendment claims. A preservation and merits analysis of various Bruen claims are set forth in my dissent in People v Garcia (decided today). -9-