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People v. He

Supreme Court of New York, Second Department

December 27, 2017

The People, etc., respondent,
v.
Rong He, appellant. Ind. No. 7085/11

          Argued-March 2, 2017

         D54352 T/hu

          Paul Skip Laisure, New York, NY (Anna Pervukhin of counsel), for appellant.

          Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Lori Glachman of counsel), for respondent.

          RANDALL T. ENG, P.J. L. PRISCILLA HALL SHERI S. ROMAN SYLVIA O. HINDS-RADIX, JJ.

          DECISION & ORDER

         Appeal by the defendant from a judgment of the Supreme Court, Kings County (J. Goldberg, J.), rendered October 7, 2013, convicting him of assault in the second degree (two counts) and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress his statement to law enforcement officials.

         ORDERED that the judgment is affirmed.

         Shortly after midnight on February 15, 2011, the defendant approached a man named Tong Zhang on the dance floor of a Brooklyn nightclub and stabbed him in the neck with a sharp object. When a second man, Chun Zhang, attempted to prevent the defendant from fleeing, the defendant slashed Chun Zhangin the face and stabbed him in the chest and arm. The defendant was apprehended six months later, after Chun Zhang recognized him on a street in Brooklyn, followed him to the apartment building where he lived, and called 911. About 4% hours after his arrest, the defendant gave the police a statement in which he admitted that he had slashed one victim in the neck and another victim in the face, but claimed that he was acting in self-defense.

         Prior to trial, the defendant moved, interalia, to suppress his statement to the police. According to the testimony presented at the ensuing suppression hearing, at about 8:15 on the evening of August 15, 2011, Detective John Papio and his partner responded to a call advising them that awitness had seen the perpetrator of the nightclub incident walk into abuildingon 52nd Street in Brooklyn. After initially gathering at a nearby street corner, Detective Papio, his partner, another detective, and several uniformed officers proceeded to the 52nd Street building Detective Pap io described the building as a three-story attached residential building, with at least one apartment on each floor. When Detective Papio arrived at the premises behind other police personnel, he entered a "shared area" of the building through an open door, and began to walk upstairs. From the second floor landing, he was able to see the defendant and the defendant's wife standing outside the door to their third-floor apartment. A detective who was acting as an interpreter walked the defendant over to Detective Papio, who walked the defendant out to the street. At about 8:30 p.m., one of the victims of the nightclub incident was driven to the scene, and identified the defendant as the perpetrator. The defendant was then handcuffed and transported to the 68th Precinct station house.

         Detective James Hemmer, who had been assigned to investigate the nightclub incident on the day it occurred, was called in to process the defendant's arrest between 8:30 and 9:00 p.m. When Detective Hemmer arrived at the station house at about 9:00 p.m., the defendant was in a holding cell. At about 9:30 p.m., Detective Hemmer interviewed the victim Chun Zhang, who told him that he had spotted the man who stabbed him leaving a store in Brooklyn. Chun Zhang followed the man, saw him enter the building on 52nd Street, called 911, and then directed the police to the building A short time later, when the man was brought out of the building by the police, Chun Zhang identified him as the person who had stabbed him inside the nightclub.

         At about 10:00 p.m., Detective Hemmer went to see the defendant, and asked him if he spoke English. The defendant responded by shakinghis head"no." Three hours later, at about 1:00 a.m., Detective Hemmer spoke to the defendant inside a second-floor interview room with the assistance of Police Officer Victor Ko, who acted as a translator. At Detective Hemmer's instructions, Officer Ko read the defendant Miranda warnings (see Miranda v Arizona, 384 US436), translating them from a Miranda rights sheet. The defendant initialed each right listed on the sheet, and signed on the bottom. After administering the warnings, Officer Ko asked the defendant if he knew why he was at the precinct, and the defendant replied, "yes, I know it in my heart." The defendant then gave a statement in which he claimed that Tong Zhang and his friends attacked him at the nightclub, and that he swung a sharp metal object at them in self-defense, slashing one victim in the neck and another in the face.

          At the conclusion of the hearing, the Supreme Court found that the defendant had been arrested in the hallway in front of his apartment door, and that the hallway was part of his home because he had a reasonable expectation of privacy in that area. Accordingly, the court determined that the police violated Payton v New York (445 U.S. 573) by arresting the defendant in the hallway without a warrant. However, the court concluded that suppression of the defendant 's statement was not required because the statement was attenuated from his illegal arrest.

         After ajury trial, the defendant was convicted of two counts of assault in the second degree, and criminal possession of a weapon in the fourth degree. On appeal he contends, inter alia, that his statement to the police should have been suppressed because it was not sufficiently attenuated from his illegal arrest to be purged of the taint created by the illegality. The People respond that the defendant was not illegally arrested in violation of Payton because the hallway outside of his apartment was not part of his home, and, in any event, the defendant 's statement was sufficiently attenuated to purge any taint.

         Initially, we note that CPL 470.15(1) bars this Court from affirming a judgment, sentence, or order on a ground not decided adversely to the appellant by the trial court (see People v Concepcion,17 N.Y.3d 192, 195; People v LaFontaine,92 N.Y.2d 470, 473-474). This provision has been construed as " a legislative restriction on the Appellate Division's power to review issues either decided in an appellant's favor, or not ruled upon, by the trial court" (People v LaFontaine, 92 N.Y.2d at 474; see People v Ingram,18 N.Y.3d 948, 949). Since the Supreme Court ruled in favor of the defendant on the issue of whether he was illegally arrested in violation of Payton, we may not ...


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