Opinion
Indictment No. 70821-22
03-30-2023
The PEOPLE of the State of New York, v. Asaad QAYYUM, Defendant.
The Defendant is charged with Rape in the First Degree (PL § 130.35-1 ) and other related charges. This matter was sent to Part 12, forthwith from Part 45, for a combined Dunaway /Huntley/Payton hearing. The hearing was conducted on March 23, 2023. There were two witnesses who testified. There were three items admitted into evidence, on consent, to wit: People's #1 [Video/Audio depicting Defendant and Complainant in an automobile], People's #2 [Photograph of the Defendant from Facebook], and People's #3 [Video/Audio of Defendant's Miranda warnings and interrogation by Detective Schooling]. No additional evidence was heard or reviewed for the purpose of this Decision and Order.
Facts
I. Testimony of Detective Joshua Laveglia, NYPD Warrant Squad
Detective Joshua Laveglia, an eighteen-year veteran of the New York City Police Department [NYPD], currently assigned to the Warrant Squad (for the last thirteen years), credibly testified to the following relevant facts. [1] That Detective Laveglia, Lieutenant Naso, and Detective Bradley, in their official capacity as members of the NYPD, responded to the Defendant's home located at XX Dover Green, Staten Island, New York because of an active probable cause i-card. [2] That upon arrival at the Dover Green residence, he knocked on the front door for "a couple of minutes." [3] That a man called Ajwad answered the door, who identified himself as the Defendant's brother. [4] That the Defendant's brother permissibly let the three officers into the home, in response to Detective Laveglia's desire to talk to the Defendant. [5] The three officers were escorted by the Defendant's brother downstairs to the Defendant's bedroom, where he was sleeping. [6] The Defendant's brother knocked on the bedroom door, and the Defendant opened it. [7] Detective Laveglia informed the Defendant that he was named in an open complaint and that he had to come to the precinct to handle the matter. [8] That the Defendant was cooperative, got dressed, and accompanied the officers to their unmarked van, at which time he was searched for safety reasons, and handcuffed before entering the van. [9] That the Defendant never asked for an attorney and did not have any conversation with the officers on their way to the 120th Precinct. [10] That the apprehension of the Defendant occurred at approximately 6:00AM. [11] The Defendant did not ask for an attorney at any point during the apprehension and transport to the precinct. [12] No promises or threats were made by the officers during the apprehension and transport of the Defendant to the precinct. [13] The Defendant was identified by Detective Laveglia in the courtroom, by an article of clothing he was wearing.
II. Testimony of Detective Doris Schooling, Special Victims Unit
Detective Doris Schooling, of the Special Victims Unit of the NYPD, an eleven year veteran of the Department, credibly testified to the following: [1] She investigates sex crimes and child abuse crimes in the Borough of Staten Island, City and State of New York,]. [2] On August 14, 2021, Detective Schooling became involved in an investigation regarding Complainant. [3] Detective Schooling had a conversation with Complainant on August 14, 2021, wherein Complainant described meeting with a mutual friend after they had a conversation via Snapchat. She claimed to be convinced to meet up together near her residence. Complainant told Detective Schooling that upon arrival, the Defendant asked Complainant to go for a walk, and she agreed. Complainant alleges that the Defendant forcibly pulled her hand, and forcibly performed oral sex on her, forcibly had her perform oral sex on him, digitally penetrated her vagina, and then forcibly raped her.
[4] That Complainant sought medical attention following the incident, and what's commonly known as a "rape kit" was performed. [5] As a result of the "rape kit" having been submitted to the OCME's office for testing. [6] That the Defendant had been a victim of a crime, to wit: the theft of an automobile some time prior to August 2021. [7] That because of the investigation into the past theft of Defendant's automobile, the Staten Island Robbery Squad obtained an elimination sample . [8] That Detective Schooling's inquiry as to the elimination sample was made solely to send to the OCME to determine if the DNA in the rape kit matched that of the Defendant herein. [9] A swab from the steering wheel in which the Defendant was driving, matched the DNA in Complainant's "rape kit," namely the underwear that was obtained from Complainant; according to the OCME. [10] Complainant identified the Defendant as the perpetrator, from a video that she provided (People's Exhibit 2 in Evidence), identifying the Defendant and features including a beard and glasses, in the front seat of a mutual friend's vehicle. The video was played in court during the hearing. [11] Complainant provided the Detective with the Defendant's name and his Snapchat username.
The elimination sample was retrieved at the request of Detective Schooling. The Detective explained that, In the ordinary course, an elimination sample would have been obtained in the robbery case, however, the Staten Island Robbery Squad had not yet obtained a sample, at the time of her inquiry.
[12] Detective Schooling conducted a search of the following NYPD platforms; ECMS and DASlight, yielding a match via Facebook, and to an individual that resided on Staten Island, named Asaad Qayyum. [13] On October 1, 2021, Complainant provided Detective Schooling with a photograph of the Defendant, that she retrieved from Facebook, matching the same Facebook photograph the Detective had seen on Facebook prior. [14] A copy of the photograph was admitted to evidence, on consent, as People's Exhibit 2. [15] People's Exhibit 3, to wit: a video depicting the questioning of the Defendant by Detective Schooling at the 120 Precinct was published in open court. The video is almost two hours in length and was published to the court in portions relevant to the instant hearing, on consent. The Defendant never asked for a lawyer and was provided with several opportunities for food and water. The Defendant was provided water at his request.
Conclusions of Law
Dunaway/Payton Issues
A police officer may arrest a person without a warrant when the officer has probable cause to believe that the person has committed a crime ( People v Johnson , 66 NY2d 398 [1985] ). While probable cause does not require the same quantum of proof needed to warrant a conviction, it does require sufficiently specific and detailed descriptions and circumstances which would lead a police officer to reasonably conclude that the Defendant was the perpetrator of the crime ( People v Harris , 224 AD2d 711 [2d Dept 1996]. See also People v Bigelow , 66 NY2d 417 [1985] ; People v Kennedy , 282 AD2d 759, 759–60 [2d Dep't 2001] ). As to probable cause for the arrest, there was credible testimony and evidence proffered at the hearing that Complainant recorded and produced video of the Defendant from a time when they were in a car together with mutual friends, while in a vehicle with him and others, "a couple of weeks prior to August 14, 2021, the date of the alleged rape. The Complainant had the Defendant's Snapchat username, Facebook name, and she provided a photograph of the Defendant she retrieved from his Facebook page, Complainant knew his name, and had mutual friends. Moreover, an elimination sample from a prior investigation was used to determine whether the DNA in the rape kit matched the Defendant's. Detective Schooling testified that the OCME determined "the swab from the steering wheel in which the Defendant was driving matched [the] rape kit." In addition, the Complainant provided a chronological account detailing the lead up to her meeting with the Defendant, and the details leading up to the alleged rape, and subsequent medical attention. Further, the Detective was able to use the Snapchat and Facebook information, in conjunction with the databases, to locate the Defendant's residence, and other relevant information, that corroborated some of the Complainant's allegations regarding the Defendant's identity. Consequently, Detective Schooling had probable cause before she issued a probable cause i-card. There was no testimony at the hearing controverting the Complainant's identification of, and/or familiarity with the Defendant. The Defendant's own statements during the post-Miranda interrogation, show that he knew the Complainant, met with her on the night of the incident, and that he engaged in oral sex with her. The issue as to consent, is for the trial court to determine. All these facts and circumstances cumulatively yield probable cause for the arrest.
It is well settled, absent consent or exigent circumstances, the police are not permitted to invade a person's home without a warrant. (Payton, supra ). In the instant action, the parties agree that no warrant was issued, and no exigent circumstances existed. Therefore, the only issue before this Court, regarding whether the police entered the Premises legally, is whether consent to enter the Premises was voluntarily given, by a person authorized to give consent. Here, it is uncontroverted by Detective Laveglia's testimony, that the Defendant's brother answered a knock at the front door, entertained the officers request to gain entry, and lead the officers to the Defendant's bedroom, where the Defendant opened the door, and voluntarily spoke with the officers. Curiously absent to controvert the Detective's testimony, was any testimony by the Defendant's brother, mother, and father, who were all present at the time of the apprehension, in the home. There was no testimony at the hearing showing that the officers lacked permission to enter the home.
The Supreme Court of the United States held in Payton itself that "the Fourth Amendment ... prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest" ( 445 US at 576 [emphasis added ]) despite "ample time to obtain a warrant" ( id. at 583, 100 SC. 1371). The Court explained that "the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant" ( id. at 590, 100 SCt 1371 ). As the Supreme Court has subsequently explained, Payton does not prohibit the police from knocking on a suspect's door because, "[w]hen law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak" ( Kentucky v. King , 563 US 452, 469–470 [2011] ).
However, police may not compel a suspect to open a door by threatening to violate the Fourth Amendment by, "for example, ... announcing that they would break down the door if the occupants did not open the door voluntarily" ( id. at 471, 131 SCt 1849 ). Nor does Payton prohibit a warrantless arrest in the doorway; indeed, "the warrant requirement makes sense only in terms of the entry, rather than the arrest [because] the arrest itself is no more threatening or humiliating than a street arrest" ( 3 Wayne R. LaFave, Search and Seizure § 6.1 [e] [5th ed. 2012] [internal quotation marks omitted ]). There is no evidence that the officers made threats or engaged in any activity that would be a violation of the Defendant's rights.
Therefore, based upon the testimony of Detective Laveglia that the Defendant's brother resided with the Defendant in the family home, this court has found that the voluntary consent, for the police to enter the Premises, given by the Defendant's brother, who has sufficient authority and control of the Premises to be valid (See People v Hardy , 187 AD2d 810 [3d Dept 1992] ; People v Charbonier , 220 AD2d 221 [1 Dept1995] ).
Dunaway/Huntley Issues
It is well settled that the burden of proof as to the voluntariness of Defendant's statement is on the People. The Court must find voluntariness beyond a reasonable doubt before the statement can be submitted to the jury (See, People v Huntley , 15 NY2d, 72 (1965) ).
The test used to determine whether a Defendant is in custody is based upon whether a reasonable person in the same situation as the Defendant, innocent of any crime, considers himself in custody. Here, it is uncontroverted that the Defendant, voluntarily went with Detective Laveglia to the NYPD van, and was placed in handcuffs. No discussion or conversation was had during the transport, and no statements made, if any, were proffered by the People in this case. It was clear to this court, based upon viewing the video, that the Defendant made his statements regarding the crime, directly after having been read Miranda warnings by the same Detective who interrogated him. In addition, the Defendant was not handcuffed, was provided with water and an opportunity for food, no weapons were drawn and he was free to disengage with the Detective. Therefore, it is clear to this court that the NYPD did not use any tactics or engage in any conduct that would violate the Defendant's rights, and the statements made, were unequivocally voluntary and, made immediately after the Detective lawfully administered Miranda warnings. Therefore, statements made by the Defendant resulting from the apprehension, arrest, and interrogation, will not be suppressed.
Conclusion
Based upon the foregoing, this court finds that [1] There was probable cause for the arrest, [2] That the warrantless entry into Defendant's home for the purposes of his apprehension and arrest was with permission, and lawfully maintained, and [3] That the Defendant's statements were voluntary, made post-Miranda warnings, and will not be suppressed.
This shall constitute the Decision and Order of this Court after hearing.
The Clerk of the Court shall enter judgment accordingly.
This matter is sent forthwith to Part 45 for decision/trial on April 25, 2023.