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ALTHOUGH IT APPEARS THE POLICE HAD PROBABLE CAUSE TO ARREST THE DEFENDANT BEFORE THEY ENTERED THE HOME AND THEREFORE COULD HAVE GOTTEN AN ARREST WARRANT, THERE WAS NO CONSTITUTIONAL VIOLATION BECAUSE THE POLICE ENTERED THE HOME WITH CONSENT; DEFENSE COUNSEL ARGUED THE POLICE DID NOT GET A WARRANT TO DELAY THE ATTACHMENT OF THE RIGHT TO COUNSEL AND PROCURE STATEMENTS (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Chambers raising a question of first impression, determined the police did not violate the New York Constitution when they entered the home looking for defendant and made a warrantless arrest. The police had probable cause when they went to the home and defense counsel argued they did not get a warrant in order to delay the attachment of the right to counsel and obtain statements. The Second Department determined there was no Payton violation because the motion court credited the police testimony claiming they entered the home with the consent of the person who answered the door:

… [T]he defendant’s appellate counsel specifically contends that where the police, armed with probable cause and ample time to obtain an arrest warrant, nevertheless choose to make a warrantless arrest in the absence of exigent circumstances, their conduct must be deemed to violate the defendant’s indelible right to counsel under the New York State Constitution (see People v Harris, 77 NY2d at 440).

While this issue presents what appears to be an important constitutional question of first impression, we see no viable path to resolving this question in the defendant’s favor within the current framework of New York law. Although the hearing evidence fully supports the defendant’s view that the police went to the subject residence with the intent of making a warrantless arrest—indeed, the People did not present any evidence to suggest any alternative motive for the early morning visit—New York law does not presently recognize a “new category of Payton violations based on subjective police intent” (… People v Harris, 77 NY2d 434). Therefore, we decline to find that the police conduct in this case amounted to a violation of the defendant’s constitutional rights under Payton and/or Harris.

Moreover, since the hearing court’s supportable finding of voluntary consent negates the defendant’s Payton claim, we need not consider the defendant’s further contention regarding the causal link between the warrantless arrest and his subsequent statements to the police. People v Cuencas, 2020 NY Slip Op 08118, Second Dept 12-30-20

 

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