AD2 order dated July 1, 2015 affirming judgment of conviction. Decision below: 130 A.D.3d 644, 13 N.Y.S. 3d 215. Hall, J. (AD dissenter), granted leave December 9, 2015. (Taken off SSM.)

ISSUES PRESENTED: (1) Payton v. New York (445 U.S. 573); whether defendant was arrested inside his home without a warrant. (2) Whether defendant’s sentence as a discretionary persistent felony offender violates Apprendi. (Assigned counsel: Tammy Linn and Lynn W.L. Fahey, Appellate Advocates, 111 John St., 9th Floor, NYC 10038.)

Issues before the Court: (1) Whether a warrantless arrest of a suspect in the doorway of his residence is permissible under Payton, provided that the suspect has voluntarily answered the door and the police have not crossed the threshold. (2) Whether New York’s discretionary persistent felony offender statute violates Apprendi.

 

Held: (1) By a 5 to 2 vote, such a warrantless arrest is permissible.  (2) By a 6 to 1 vote, the discretionary persistent statute does not violate Apprendi.

 

CAL Observes: (1) In her majority decision, Judge Stein stated that the Court was merely adhering to its prior rulings that, so long as the defendant was merely between the door jambs of his residence’s threshold, no Payton violation could occur as the defendant is not inside his home. In a dissent joined by Judge Rivera, Judge Wilson stated that the rule should be that Payton is violated, even if the suspect does actually cross the threshold, if the sole reason the police went to defendant’s home was to arrest him without a warrant–a ploy which should be discouraged since it allows the police to circumvent the attachment of the right to counsel (which would attach with the issuance of the warrant).  In a separate dissent, Judge Rivera would have held that a defendant has a privacy interest in the common hallway of a two-family residence, as was the case here.   (2) As to the Apprendi issue, Judge Fahey was the lone dissent. He flat out described the Court’s previous rulings on this issue as flawed and contrary to Supreme Court precedent.  Most of those previous rulings provoked dissents by judges no longer sitting. Perhaps the insertion of this dissent will motivate the United States Supreme Court to finally grant a cert petition challenging New York’s law; previous efforts have been unsuccessful.