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DEFENDANT WAS ENTITLED TO A HEARING TO DETERMINE WHETHER THE SECURITY GUARD WHO RECOVERED STOLEN PROPERTY FROM HIM WAS LICENSED TO EXERCISE POLICE POWERS OR WAS ACTING AS AN AGENT OF THE POLICE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, determined defendant was entitled to a hearing on whether the store security guard who detained him was licensed to exercise police powers or was acting as an agent of the police. Although the defendant had already pled guilty and was sentenced, the information available to the defendant did not identify the person who detained him and, therefore, defendant could hot have subpoenaed employment records to ascertain the security guard’s employment status:

Under People v Mendoza (82 NY2d 415, 425, 433—434 [1993]), defendant is entitled to a hearing on the purely factual issue of whether or not the security guard involved in his detention was licensed to exercise police powers, or acting as an agent of the police. * * *

… [T]he felony complaint provided no information regarding defendant’s arrest, and the VDF simply indicated that the arrest took place on “May 27, 2027,” at “9:04 PM,” “Inside Bergdorf Goodman at 754 Fifth Avenue.” The individual who allegedly recovered the stolen material from defendant’s handbag was neither identified by name nor as an employee of Bergdorf.

This information could not have helped defendant further investigate whether the security guard was a private or state actor status. People v Sneed, 2021 NY Slip Op 05095, First Dept 9-28-21

 

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