The opinion of the court was delivered by: William E. Garnett, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
On July 16, 2008, July 18, 2008 and November 18, 2008, this Court conducted a Huntley hearing.
Parole Officer Doris Allen and Police Officer Serdaros testified on behalf of the People and Karma Pair testified on behalf of the defendant. I make the following findings of fact based on the testimony that I find credible:
Parole Officer Allen has been employed by the NYS Division of Parole since August, 1993. She was assigned to supervise the parole of the defendant in July, 2006. The defendant had been paroled on a burglary conviction. Upon his release, he had signed the conditions of parole which included his consent to a search of his residence, person and property and required him to fully and truthfully answer any inquiry by his parole officer or other representative of the Division of Parole. People's Exhibit #1 in evidence. When Officer Allen first met with the defendant, the consent to search provision was reiterated to him and he reaffirmed his consent. Mr. Vann gave his residence as 87 East 31st Street in Kings County. No previous searches had been conducted by Officer Allen at the defendant's residence.
The defendant, as a condition of his parole, was referred to a drug program in November, 2006. In December, 2006, January and February, 2007, the defendant tested positive for cocaine. On March 15, 2007, Officer Allen, in consultation with Parole supervisors and Parole Officer Wynn, decided to do a home visit with the intention of doing a search. At that time, Officer Wynn was assigned to the "Targeted Offender Program" [TOP] which was then doing visits in cases where the parolees, as the defendant, had been convicted of burglary.
On March 16, 2007, prior to conducting any home visits, Parole Officer Wynn met with Sergeant Devine, Officer Serdaros and Officer Neavedo of the 67th Precinct Anti-Crime Unit who had been assigned to assist him in the execution of the home visits. Parole Officer Wynn had selected the parolees' home which would be visited and identified them to the Police Officers. He also told the Police Officers the number of people to expect at each home and the crime for which the parolee was on parole. Parole Officer Allen did not participate in the visit or search.
Parole Officer Wynn chose to visit the defendant's residence at 87 East 31st Street first because it was geographically the closest address to the precinct house. Parole Officer Wynn, in the company of the Police Officers, knocked on the door of the defendant's second floor apartment. When the defendant opened the door, Parole Officer Wynn explained to the defendant that he wanted to conduct a parole search of his apartment. After the defendant orally consented to the search, Parole Officer Wynn and the Police Officers entered the premises. The defendant was directed to sit on a couch which was in the middle of the living room. The defendant was not handcuffed during the search. The defendant's teenage daughter, who was still in her pajamas, was told to get dressed and to take a seat on the couch.
Parole Officer Wynn then walked into a bedroom to the left of the living room and asked the defendant if it was his room. The defendant replied that it was his room.
Police Officer Serdaros, who was standing directly in front of and to the right of the defendant, had a direct view of Parole Officer Wynn inside the bedroom. The defendant also had a direct view of the Parole Officer. Parole Officer Wynn walked over to an armoire and asked the defendant if it was his. The defendant replied that the armoire was his. Parole Officer Wynn then opened the door to the armoire and asked the defendant if the clothing inside was his. The defendant stated that the clothes were his. Parole Officer Wynn continued his search of the armoire and subsequently removed two large blocks of a white, powdery substance that were vacuum sealed. These blocks "were approximately, one to one and a half (1 1/2) inches thick and probably about the size of [an] eight by ten". Parole Officer Wynn asked the defendant what they were. The defendant replied: "You know what that is, it appears to be cocaine" and thereafter acknowledged that they were his. Parole Officer Wynn then collected a large amount of money from various locations in the bedroom.
Officer Wynn continued his search in the living room. At the entertainment center, Parole Officer Wynn opened two doors underneath the television set and pulled out a duffel bag. Inside the duffel bag, he discovered a shoe box that contained a firearm. Parole Officer Wynn gave the firearm to Police Officer Serdaros who put it in his waistband for safekeeping. Police Officer Serdaros was also given the two large blocks of white powder which he put inside the shoe box along with the bullets from the firearm. The defendant was handcuffed and placed under arrest. During the search, the defendant had not been threatened or promised anything to elicit any admissions or statements. There was no evidence of any coercion. In response to pedigree questioning, the defendant admitted that he lived at this address.
From the time the defendant was placed under arrest to the time he was taken to the precinct approximately ten (10) to (30) minutes passed. During this time, Ms. Karma Pair, the defendant's daughter's aunt, had arrived in response to a phone call to pick up the defendant's daughter. The aunt stood in the living room. The defendant was sitting with his daughter on the couch having a conversation. The defendant was overheard encouraging his daughter to take her school bag, which was in the living room, when she left with her aunt. Officer Serdaros described the bag as a backpack which a child or teenager would normally carry. When the defendant's daughter picked up the bag and started to leave with it, the police searched the bag. A large amount of money and a couple of sets of car keys were recovered from the bag. The defendant's daughter had neither a driver's license nor a car. The defendant's daughter was about fifteen (15) to sixteen (16) years old. The defendant's daughter was placed under arrest. Officer Serdaros explained that the defendant's daughter was arrested because it appeared that she knew of the situation in the apartment, i.e., the narcotics and firearm and may have played a role in what was going on in the apartment in that she was trying to leave with money and car keys.
After the defendant's daughter was arrested, the defendant and his daughter were in the same room. No one said anything to the defendant at that time about his daughter's arrest. The defendant and his daughter were subsequently transported to the 67th Precinct.
Later that day, Parole Officer Allen and Parole Officer Wynn were present with the defendant for approximately one and one-half (1 1/2) to two hours at the District Attorney's Office. The defendant's daughter was also present. Miranda warnings were never administered to the defendant in Parole Officer Allen's presence. The defendant was told that his daughter could also be charged. Thereafter, the defendant said that: "It's all mine." The People conceded that this admission ...