People v. McLeanPeople v. McLean
Ordered that the judgment is affirmed.
In 2010, the defendant, a New York City Police Department (hereinafter NYPD) detective, was in a relationship with Assia Winfield. At that time, Winfield had made numerous criminal complaints, and had obtained orders of protection, against an ex-boyfriend, LePaul Gammons, for stalking and harassing her. In the early morning hours of November 15, 2010, the defendant was sitting in his car outside Winfield’s house when Winfield ran up and told him Gammons was there. The defendant got out of his car, drew his off-duty firearm, and fired several shots at Gammons as Gammons fled down the street on foot. A surveillance video recording recovered from a nearby home showed Gammons fleeing, and the defendant taking a “shooting stance” and firing in his direction. One of the shots struck Gammons in the buttocks, causing significant physical injury, but he managed to get away.
On the night of the incident, the defendant and Winfield called 911 to report a burglary, failing to mention that the defendant had fired his weapon. At trial, the People adduced evidence that, when asked by a detective at the scene whether he had discharged a weapon, the defendant denied having done so. Gammons did not report the incident until several days later, when he called the Civilian Complaint Review Board and sought treatment at a hospital. The ensuing investigation by the NYPD Internal Affairs Bureau resulted in the defendant being placed on modified assignment. An Internal Affairs Bureau team traveled to the defendant’s home to inform the defendant that he had been placed on modified assignment, and to collect his firearms in accordance with procedures set forth in the NYPD Patrol Guide. The defendant allowed the team into his home and surrendered his firearms after being asked to do so.
The hearing court properly denied that branch of the defendant’s omnibus motion which was to suppress the firearms removed from his home by the NYPD. The defendant contends that the warrantless removal of his firearms from his home violated his state and federal constitutional rights to be free
Contrary to the defendant’s contention, the admission of evidence at trial regarding his failure to report that he discharged his weapon and his statement denying that he discharged his weapon, and the prosecutor’s related remarks on summation, did not violate his constitutional right against self-incrimination. With respect to public employees, “[u]nder both the State and Federal Constitutions, a statement made under threat of dismissal is protected by the privilege against self-incrimination and automatically immunized from use in criminal proceedings” (People v Corrigan, 80 NY2d 326, 329 [1992]; see Lefkowitz v Turley, 414 US 70, 78-79 [1973]; Gardner v Broderick, 392 US 273, 276-277 [1968]; Garrity v New Jersey, 385 US 493, 500 [1967]; Matter of Matt v Larocca, 71 NY2d 154, 159 [1987]; People v Avant, 33 NY2d 265, 271 [1973]; People v Smith, 29 AD3d 1035, 1037 [2006]). “In formulating a test for what constitutes a compelled statement, some courts, following the teaching of United States v Indorato (628 F2d 711, 716-717 [1st Cir 1980]), require a showing that a defendant was explicitly made aware that discharge would result from a failure to cooperate. Other courts have adopted a two-part test articulated in United States v Friedrick (842 F2d 382, 395 [DC Cir 1988]), in which the defendant must subjectively believe that termination could follow an assertion of the privilege and, importantly, that belief must be objectively reasonable under the circumstances” (People v Smith, 29 AD3d 1035, 1037 [2006] [some citations omitted]).
Here, as in Smith, the defendant’s contention is without merit under either test (see id. at 1037). First, it is undisputed that the defendant was not “explicitly threatened with termination of his employment” (United States v Johnson, 131 F3d 132 [2d Cir 1997] [table; text at 1997 WL 792443, *2, 1997 US Dist LEXIS 36363, *5 (1997)]; see United States v Indorato, 628 F2d at 716). Additionally, there is no evidence in the record that the defendant subjectively believed he was being presented with a situation where he would be terminated if he asserted his constitutional privilege (see People v Smith, 29 AD3d at 1037). Furthermore, even if there were evidence of such a subjective belief, the record does not reveal objectively reasonable circumstances to support such a belief. The trial testimony of police witnesses established that a refusal to answer questions about a firearm discharge would not have resulted in automatic termination, but rather, a report to the Internal Affairs Bureau and further investigation.
The defendant contends that his statement denying that he discharged his firearm should have been precluded based on the People’s failure to give notice of their intent to offer evidence of this statement at trial, allegedly in violation of
The trial court did not err in permitting an expert to testify regarding the meaning of
The defendant waived his contention that evidence of a prior bad act and an uncharged crime, with regard to which the People should have requested a Molineux hearing (see People v Molineux, 168 NY 264 [1901]) was erroneously admitted. The defendant neither objected to the testimony when it was adduced, nor requested a Molineux ruling at that time, when the trial court still could have conducted a hearing, and he affirmatively used the evidence in his direct examination of his own witnesses (see People v Holmes, 47 AD3d 946 [2008]; People v Blackman, 13 AD3d 640, 641 [2004]; People v Spragis, 5 AD3d 814, 815 [2004]).
The defendant’s remaining contentions are without merit.
Dillon, J.P., Dickerson, Duffy and Barros, JJ., concur.