128 A.D.3d 1094
N.Y. App. Div.2015Background
- In 2010, McLean, an NYPD detective, was in a relationship with Assia Winfield who had orders of protection against ex-boyfriend Gammons.
- Early morning November 15, 2010, McLean fired shots at Gammons from his off-duty firearm after Winfield alerted him that Gammons was present; surveillance showed him taking a shooting stance and firing.
- Gammons was struck in the buttocks and injured; he fled and later reported the incident to the Civilian Complaint Review Board and sought hospital treatment.
- That night, McLean and Winfield reported a burglary to 911 but did not disclose the shooting; Internal Affairs later investigated and McLean was placed on modified assignment, with firearms collected.
- The suppression hearing addressed the warrantless removal of firearms; the court held McLean had no reasonable expectation of privacy in the firearms kept at home under Patrol Guide procedures, so removal was permitted.
- The trial included challenges to self-incrimination protections, evidentiary notices, expert testimony on justified use of deadly force, and Molineux evidence; the court ruled on each issue and affirmed the conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the warrantless firearm removal valid? | People | McLean | Firearms removal lawful; no reasonable expectation of privacy |
| Did McLean's statements denying discharge violate self-incrimination protections? | People | McLean | No due to Garrity/employee-privilege framework; not compelled self-incrimination |
| Was notice under CPL 710.30 required for the proof of the denial about discharge? | People | McLean | No notice required; res gestae/voluntariness considerations apply |
| Was expert testimony on police guidelines about justified use of deadly force properly admitted? | People | McLean | Testimony admissible on Penal Law §35.30 issue but guidelines portion improper; harmless error |
| Was admission of prior bad act/uncharged crime evidence waived via Molineux? | People | McLean | Waived; defendant failed to object or request ruling; no error preserved |
Key Cases Cited
- People v DeProspero, 20 NY3d 527 (NY 2013) (privacy expectations for police firearms; Fourth Amendment analysis)
- Katz v. United States, 389 US 347 (US 1967) (no unreasonable searches without a privacy expectation)
- Rakas v. Illinois, 439 US 128 (US 1979) (standing and privacy expectations in search cases)
- People v Scully, 14 NY3d 861 (NY 2010) (self-incrimination; public employee privilege considerations)
- People v Ramirez-Portoreal, 88 NY2d 99 (NY 1996) (voluntariness and custodial interrogation principles)
- People v Di Lucchio, 115 AD2d 555 (NY App.Div. 2nd Dept. 1985) (res gestae and evidentiary considerations)
- United States v Indorato, 628 F2d 711 (2d Cir. 1980) (compelled statements and termination threat framework)
- Garrity v. New Jersey, 385 US 493 (US 1967) (immunization of compelled statements for public employees)
- Lefkowitz v. Turley, 414 US 70 (US 1973) (custodial interrogation and compelled speech standards)
- Gardner v. Broderick, 392 US 273 (US 1968) (employee-privilege concerns in compelled statements)
- People v Avant, 29 AD3d 1035 (NY App.Div. 2nd Dept. 2006) (public employee privilege and admissibility considerations)
- People v Smith, 29 AD3d 1035 (NY App.Div. 2nd Dept. 2006) (two-test framework for compelled statements in public employees)
- People v Williams, 20 NY3d 579 (NY 2012) (harmless error analysis in evidentiary errors)
- People v Hicks, 2 NY3d 750 (NY 2004) (expert testimony on complex legal standards)
- People v Mezon, 80 NY2d 155 (NY 1992) (Molineux and prior bad act evidentiary standards)