This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 82 

The People &c.,

 Respondent,

 v.

Sean Garvin,

 Appellant.

Tammy E. Linn, for appellant.

Danielle S. Fenn, for respondent.

National Association of Criminal Defense Lawyers et

al., amici curiae.

STEIN, J.:

In this case, we are asked to overrule our prior

decisions holding that a warrantless arrest of a suspect in the

threshold of a residence is permissible under the Fourth

Amendment, provided that the suspect has voluntarily answered the

door and the police have not crossed the threshold. We decline

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to do so, and now reaffirm our longstanding rule.

I.

Defendant was convicted of four counts of third-degree

robbery and one count of attempted third-degree robbery in

connection with a string of bank robberies. He was arrested

without a warrant inside the doorway of his home on the same day

that police obtained a match for his fingerprint on a demand note

used during one of the robberies. The arresting officer

testified that he was instructed by a detective to go to

defendant's residence to arrest him. Upon arriving there, three

officers in plain clothes walked to the top of an interior

staircase in the two-family house, while two detectives went to

the rear of the building. One of the officers knocked on the

apartment door, which was opened by another person in the

residence. The officer did not know whether defendant lived on

the first or the second floor and, because she did not recognize

defendant when he appeared in the doorway, the officer asked if

his girlfriend lived there.1 After defendant stated that his

girlfriend was not there and closed the door, the officers walked

down the stairs, and the arresting officer announced that he had

recognized defendant from a photograph. The officers then

returned to the apartment door. 

The arresting officer knocked on the door, and

1 Police had also obtained a fingerprint from defendant's

girlfriend on a demand note used in one of the robberies.

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defendant opened it. While defendant was standing in the doorway

of his apartment, the officer told him that he was under arrest

and, when defendant turned around and put his hands behind his

back, the officer handcuffed him. The officer did not enter

defendant's apartment -- he placed the handcuffs on defendant as

defendant stood in the doorway. Defendant was transported to the

precinct, where he waived his Miranda rights, agreed to speak

with the detectives, and initially denied involvement in the

robberies. After the investigating detective informed defendant

that both his and his girlfriend's fingerprints were found on

demand notes recovered from the locations of the robberies,

defendant confessed. 

At his subsequent suppression hearing, defendant argued

that the police violated Payton v New York (445 US 573 [1980]) by

entering his home without consent or a warrant; he maintained

that there was an absence of exigent circumstances once police

had surrounded the home so that he could not leave. He further

asserted that the police did not wait for him to exit the

premises before he was arrested, and that the police had ample

time to obtain an arrest warrant, but did not do so because they

wanted to question him without counsel. 

Supreme Court denied the motion to suppress. Following

a bench trial, defendant was convicted as stated above. The

People requested that defendant be adjudicated a persistent

felony offender based upon prior first- and second-degree robbery

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convictions. Following a hearing, the court adjudicated

defendant a persistent felony offender and sentenced him to an

aggregate term of 15 years to life in prison.

The Appellate Division affirmed, with one Justice

dissenting (130 AD3d 644 [2d Dept 2015]). That Court concluded

that defendant's warrantless arrest did not violate Payton (see

id. at 645). The Appellate Division made factual findings that,

after entering the front door of the house, passing through a

vestibule and climbing the stairs, "[o]ne of the officers knocked

on the closed apartment door, the defendant opened it, and the

officer effectuated the arrest in the doorway. The arresting

officer did not go inside the defendant's apartment, or reach in

to pull the defendant out" (id. [emphasis added]). Most

critically here, the Appellate Division found that "defendant was

arrested at the threshold of his apartment after he voluntarily

emerged" (id. [internal quotation marks and citation omitted]).2

Thus, the Appellate Division concluded that defendant had

voluntarily "surrendered the enhanced constitutional protection

of the home" (id. [internal quotation marks and citation

omitted]). The Appellate Division also upheld the persistent

felony offender adjudication. The dissenting Justice diverged

2 In his dissent, Judge Wilson acknowledges that we are

bound by the Appellate Division's findings of facts, but takes

issue with our "interpretation of those findings" (Wilson, J.,

Dissent op, at 4). Judge Wilson's lengthy "interpretation" of

the facts, however, conflicts with the findings of the Appellate

Division. 

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from the majority only with respect to the denial of defendant's

motion to suppress, concluding that the People failed to

establish that the initial police entry into the building where

defendant lived was lawful because there was no evidence that the

police knew the building was a two-family house, rather than a

one-family house, prior to entering it (see id. at 646).

The dissenting Justice thereafter granted defendant

leave to appeal.

II.

Defendant's primary argument is that his post-arrest

statements and the physical evidence recovered from him at the

precinct should have been suppressed because his warrantless

arrest in the doorway of his apartment was unconstitutional under

Payton. Specifically, he asserts that the arrest violated his

constitutional right to be free from unreasonable searches and

seizures because he opened his door only in response to knocking

by police officers who were there for the sole purpose of

arresting him without a warrant. Defendant's arguments are

refuted by our precedent.

Although "[i]t is axiomatic that warrantless entries

into a home to make an arrest are presumptively unreasonable"

(People v McBride, 14 NY3d 440, 445 [2010] [internal quotation

marks and citation omitted] [emphasis added]), we "have long

recognized that the Fourth Amendment is not violated every time

police enter a private premises without a warrant" (People v

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Molnar, 98 NY2d 328, 331 [2002]). There are "a number of

'carefully delineated' exceptions to the Fourth Amendment's

Warrant Clause" in that context (Molnar, 98 NY2d at 331, quoting

Welsh v Wisconsin, 466 US 740, 749-750 [1984]). One of those

exceptions is consent to entry (see id. at 331 n 1; People v

Levan, 62 NY2d 139, 141 [1984]). Similarly, we have repeatedly

and consistently recognized that, even where "the police could

have obtained an arrest warrant for [a] defendant from a neutral

magistrate before it dispatched . . . members from its force to

[the] defendant's home . . ., there [i]s nothing illegal about

the police going to [a] defendant's apartment and requesting that

he [or she] voluntarily come out" (McBride, 14 NY3d at 447; see

People v Spencer, 29 NY3d 302, 312 [2017]; People v Reynoso, 2

NY3d 820, 821 [2004]; People v Minley, 68 NY2d 952, 953-954

[1986]).

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). 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). 

As the Supreme Court has subsequently explained, Payton

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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 [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).3 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 and

citation omitted]). 

Consistent with that understanding of Payton as

prohibiting only "the police . . . crossing the threshold of a

3 In Florida v Jardines, the Supreme Court further

recognized that there is an "implicit license [that] typically

permits the visitor to approach the home by the front path, knock

promptly, wait briefly to be received, and then (absent

invitation to linger longer) leave . . . Thus, a police officer

not armed with a warrant may approach a home and knock, precisely

because that is 'no more than any private citizen might do'" (569

US 1, 8 [2013], quoting Kentucky v King, 563 US 452, 469 [2011];

see People v Kozlowski, 69 NY2d 762-763 [1987]).

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suspect's home to effect a warrantless arrest in the absence of

exigent circumstances" (Minley, 68 NY2d at 953), we have upheld

warrantless arrests -- both planned and unplanned -- of

defendants who emerged from their homes after police knocked on

an open door and requested that the defendant come out (see

(Spencer, 29 NY3d at 312, revg on other grounds 135 AD3d 608 [1st

Dept 2016]), used a noncoercive ruse to lure the defendant

outside (see People v Roe, 73 NY2d 1004, 1005 [1989], affg 136

AD2d 140 [3d Dept 1988]), or directed the defendant to come out

after seeing him peek through a window (see Minley, 68 NY2d at

953). We also upheld a planned, warrantless arrest where the

defendant either voluntarily exited his house, or stood behind

his mother in the front doorway, and stuck his head out of the

door in response to a police request that he come outside (see

Reynoso, 2 NY3d at 821, affg 309 AD2d 769 [2d Dept 2003]). In

other words, for purposes of determining whether there was a

Payton violation, we have deemed it to be irrelevant whether the

defendant was actually standing outside his home or was standing

"in the doorway," and we have upheld a threshold arrest, like

that at issue here.4 Critically, the police never entered the

4 Defendant argues that Reynoso is distinguishable because

that case did not address instances in which police go to a

suspect's residence with the subjective intent to make a

warrantless arrest and lure the suspect to the doorstep for that

purpose. However, the facts in Reynoso demonstrate that the

police did just that -- they used a ruse to get the defendant to

the door, where the officers requested that he come outside and

he either voluntarily exited the house or stood in the doorway

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defendants' homes in these cases and, thus, the intrusion

prohibited by Payton did not occur.

III.

Despite our jurisprudence on this issue, defendant and

two of our dissenting colleagues, Judges Wilson and Rivera, urge

us to adopt a new rule that warrantless "threshold/doorway

arrests" violate Payton when the only reason the arrestee is in

the doorway is that he or she was summoned there by police. 

Defendant purports to find support for this rule in United States

v Allen (813 F3d 76 [2d Cir 2016]), which he urges us to adopt

and characterizes as holding that the police may not go to a

suspect's home and lure him or her to the doorstep for the sole

purpose of making a warrantless arrest.5 However, we are not

bound by Allen6 and, in any event, it is distinguishable. In

(see 309 AD2d 769, 771 [2d Dept 2003] [McGinity, J. dissenting]). 

Thus, we reject defendant's argument that there is any meaningful

distinction between Reynoso and this case.

5 Two of the dissenters would go further and hold that "if

the police plan to arrest someone who is at home, absent exigent

circumstances, until they have an arrest warrant, they may not go

to the person's door to arrest him or cause him to leave his home

to arrest him outside of it" (Wilson, J., Dissent Op., at 7), and

that an "arrest is constitutionally invalid" when "the sole

reason the police went to defendant's home was to effect his

arrest . . . without a warrant" (Rivera, J., Dissent Op., at 12). 

As explained below, a rule turning on subjective police intent is

"fundamentally inconsistent with . . . Fourth Amendment

jurisprudence" (Kentucky v King, 563 US 452, 469 [2011]).

6 To the extent Judge Wilson suggests that we should adopt

Allen to "ensur[e] our protections are no less than those

guaranteed by the local federal courts" (Wilson, J., Dissent Op

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that case, police went to the defendant's apartment with the plan

of arresting him (see id. at 78). After they knocked on the

defendant's door, he stepped out onto his second floor porch and

police requested that he come down to speak with them (see id. at

79). The defendant complied and, after speaking to the officers

for several minutes, they told him that he would have to come

down to the police station to be processed for an alleged assault

-- i.e., that he was under arrest (see id.). The Second Circuit

noted that "neither party dispute[d] that [the defendant] was

arrested while he was still inside his home" or that the

defendant "was arrested while standing inside the threshold of

his home" (see id. at 80 n 6). Thus, "th[e] case concern[ed] an

'across the threshold' arrest" (id.) -- i.e., while the police

remained outside on the sidewalk (see id. at 79), the defendant

"was arrested specifically 'in' his home rather than 'on' the

threshold or in 'a public place'" (id. at 89 [Lohier, J.,

concurring]). After the defendant was arrested, police

accompanied him upstairs in his home so that he could retrieve a

pair of shoes; once inside, the officers saw, among other things,

drug paraphernalia and obtained a search warrant (see id. at 79). 

at 6, n 4), we emphasize that, while "the interpretation of a

Federal constitutional question by the lower Federal courts may

serve as useful and persuasive authority for our Court, [it is]

not binding [on] us" (People v Kin Kan, 78 NY2d 54, 59 [1991];

see People v Pignataro, 22 NY3d 381, 386 n 3 [2013]). In other

words, we do not abandon our jurisprudence in response to every

new lower federal court decision.

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The Second Circuit held that, "where law enforcement

officers have summoned a suspect to the door of his home, and he

remains inside the home's confines, they may not effect a

warrantless 'across the threshold' arrest in the absence of

exigent circumstances" (id. at 82 [emphasis added]). That is,

"[a] police officer not armed with a warrant may approach a home

and knock," but "may [not] go to a person's home . . . and then

arrest him while he remains in his home" (id. at 84 [emphasis

added]). Although the Second Circuit recognized that a federal

"circuit split" exists on the issue, with some courts holding

that police do not violate Payton unless they enter the home,

that court reasoned that Payton turns on the arrested person's

location, not the location or conduct of the officers (see id. at

78, 81-82, 85).7 

7 The Second Circuit further declined to adopt the rationale

of other federal Circuit Courts that do not require police entry

into a home to invalidate an arrest, rejecting what it deemed

"the legal fiction of constructive or coercive entry, a doctrine

under which certain types of police conduct will be deemed an

entry" (United States v Allen, 813 F3d 76, 81 [2d Cir 2016]; see

e.g. United States v Reeves, 524 F3d 1161, 1165 [10th Cir 2008]

[holding that defendant opened his door and stepped out of motel

room in response to coercive police conduct after officers made

phone calls to the room, knocked on the door and window with

flashlights, and loudly identified themselves as police officers

over the course of 20 minutes]). As recognized by the Second

Circuit, that doctrine applies only if a police "command to the

occupant to submit to arrest is sufficiently forceful and

compelling" (Allen, 813 F3d at 88). Here, no such command was

given before defendant voluntarily entered the threshold of his

apartment door -- there was simply a knock on the door. 

Moreover, defendant does not ask us to apply the constructive

entry rule in this case.

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Here, the issues of where defendant was standing at the

time of his arrest and whether he was in that location

voluntarily are mixed questions of law and fact (see Spencer, 29

NY3d at 312). We are, therefore, bound by the Appellate

Division's finding that defendant was arrested "in the doorway"

after he "voluntarily emerged," for which there is record support

(130 AD3d at 645; see People v Bradford, 15 NY3d 329 [2010]). 

Thus, Allen, which applies to "'across the threshold' arrests"

(813 F3d at 81, 85, 87, 88), is distinguishable and does not

apply here.

IV.

Defendant further claims that this case is ultimately

about closing a loophole to our decision in People v Harris, in

which "we h[e]ld that our State Constitution requires that

statements obtained from an accused following a Payton violation

must be suppressed unless the taint resulting from the violation

has been attenuated" (77 NY2d 434, 437 [1991]). We explained

that, "[u]nder both Federal and State law, the right to counsel

attaches once criminal proceedings have commenced" (id. at 439).

However, while "[u]nder the [f]ederal rule, . . . criminal

proceedings do not necessarily start when an arrest warrant is

issued . . ., criminal proceedings must be instituted before the

police can obtain a warrant" in New York (id. at 439-440). Thus,

in New York, "police are prohibited from questioning a suspect

after an arrest pursuant to a warrant unless counsel is present,"

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creating an incentive "to violate Payton . . . because doing so

enables them to circumvent the accused's indelible right to

counsel" (id. at 440). Defendant, as well as Judges Rivera and

Wilson in their respective dissents, focus on the intent of the

police in going to a defendant's home and urge that sanctioning

preplanned doorway arrests -- or, presumably, arrests where the

police request that the defendant step outside to speak to them

with the intent of effectuating a preplanned arrest -- similarly

permits police to circumvent a suspect's right to counsel. Thus,

defendant contends, and the two dissenters on this issue agree,

that we should prohibit arrests where the police lure a suspect

to the door with the subjective intent of making a preplanned,

warrantless arrest.

Inasmuch as Harris applies only to statements obtained

following a Payton violation, suppressing defendant's statements

here would require us to overrule our prior cases holding that

preplanned, warrantless arrests do not violate Payton where the

defendant exited his residence or stood on the threshold either

due to a police request or to a ruse employed by the police.8 We

8 In addition to advocating that we overrule our prior

cases, Judge Wilson views those cases as irrelevant because they

concern only the application of Payton and the Fourth Amendment

and do not address whether greater protection is warranted under

the State Constitution. Any issues regarding whether New York

Constitution article I, § 12 provides greater protection or

"should . . . provide[] greater clarity" (Wilson, J., Dissent Op,

at 7) are unpreserved here because, in the suppression hearing,

defendant did not argue that the state constitution provides

greater protections than its federal counterpart to defendants

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decline to do so based upon the principle of stare decisis, "the

doctrine which holds that common-law decisions should stand as

precedents for guidance in cases arising in the future and that a

rule of law once decided by a court, will generally be followed

in subsequent cases presenting the same legal problem” (People v

Peque, 22 NY3d 168, 194 [2013], cert denied 135 S Ct 90 [2014]

[internal quotation marks and citations omitted]). Stare decisis

"rests upon the principle that a court is an institution, not

merely a collection of individuals, and that governing rules of

law do not change merely because the personnel of the court

changes" (People v Bing, 76 NY2d 331, 338 [1990]), as well as the

"humbling assumption, often true, that no particular court as it

is then constituted possesses a wisdom surpassing that of its

predecessors" (People v Hobson, 39 NY2d 479, 488 [1976]).

While we apply the doctrine less rigidly in resolving

constitutional issues (see Bing, 76 NY2d at 338), "[e]ven under

the most flexible version of the doctrine applicable to

constitutional jurisprudence, prior decisions should not be

overruled unless a 'compelling justification' exists for such a

drastic step" (Matter of State Farm Mut. Auto. Ins. Co. v

Fitzgerald, 25 NY3d 799, 819 [2015]). We have found such

"compelling justification[s]" when a prior decision has led "to

an unworkable rule, or ... create[d] more questions than it

subject to warrantless arrests in the home. Therefore, we do not

opine on the merits of such an argument.

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resolves; adherence to a recent precedent involves collision with

a prior doctrine more embracing in its scope, intrinsically

sounder, and verified by experience; or a preexisting rule, once

thought defensible, no longer serves the ends of justice or

withstands the cold light of logic and experience" (Peque, 22

NY3d at 194 [internal quotation marks and citations]). None of

those justifications exist here; nor are we persuaded that the

"lessons of experience and the force of better reasoning" (Bing,

76 NY2d at 338 [internal quotation marks and citation omitted])

compel us to abandon our line of prior decisions on the issue

that is now before us yet again.

Far from being unworkable, as the Appellate Division

noted in this case, the current rule "is clear and easily

understood: a person enjoys enhanced constitutional protection

from a warrantless arrest in the interior of the home, but not on

the threshold itself or the exterior" (130 AD3d at 645). 

Moreover, we are not asked to overrule a recent precedent that

conflicts with a broader, pre-existing doctrine, but to adopt a

rule that looks to the subjective intent of the police and is,

therefore, "fundamentally inconsistent with . . . Fourth

Amendment jurisprudence" itself (Kentucky v King, 563 US at 464

[internal quotation marks and citation omitted]). Both this

Court and the Supreme Court have "rejected a subjective approach,

asking only whether the circumstances, viewed objectively,

justify the action" (id.; see People v Robinson, 97 NY2d 341, 349

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[2007]). As both Courts have explained, "'[t]he touchstone of

the Fourth Amendment is reasonableness' -- not the warrant

requirement" (see Molnar, 98 NY2d at 331, quoting United States v

Knights, 534 US 112, 118 [2001]). Therefore, this Court has

emphasized that "the 'Fourth Amendment's concern with

"reasonableness" allows certain actions to be taken in certain

circumstances, whatever the subjective intent'" (People v

Robinson, 97 NY2d at 349, quoting Whren v United States, 517 US

806, 814 [2001] [emphasis added]). Based on long experience, we

"acknowledge[d] the difficulty, if not futility, of basing the

constitutional validity of searches or seizures on judicial

determinations of the subjective motivation of police officers"

(id. at 350 [internal quotation marks and citation omitted]). 

Thus, under the circumstances presented here, it is not our prior

precedent that "involves collision with a prior doctrine more

embracing in its scope" (Peque, 22 NY3d at 194), but the rule

proposed by defendant, as well as the even broader rule proposed

by Judges Wilson and Rivera in dissent. 

With respect to the effect of the current rule on our

own jurisprudence, it certainly cannot be said that "the Judges

considering these cases [have been] sharply divided . . . about

how to apply the . . . rule [or] about the more fundamental

question of whether the facts presented are even encompassed

within it" (Bing, 76 NY2d at 348). Rather, all of our prior

cases addressing the issue over the last 30 years -- from Minley

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to Spencer -- have been unanimous and posed little difficulty. 

Moreover, Spencer, decided just a few months ago, reaffirmed both

Reynoso and Minley. Overturning those cases now would both

undermine the purposes of stare decisis -- which are "to promote

efficiency and provide guidance and consistency in future cases"

(Bing, 76 NY2d at 338) -- and "unsettle the belief 'that bedrock

principles are founded in the law rather than in the proclivities

of individuals'" (id. at 361, quoting Vasquez v Hillery, 474 US

254, 265 [1986] [Kaye, J. concurring in part and dissenting in

part]). Furthermore, the various rules urged by defendant and

Judges Wilson and Rivera would throw into confusion a "'bright

line rule[]'" that has long "'guide[d] the decisions of law

enforcement and judicial personnel who must understand and

implement our decisions in their day-to-day operations in the

field'" (People v Garcia, 20 NY3d 317, 323 [2012], quoting People

v P.J. Video, 68 NY2d 296, 305 [1986], cert denied 479 US 1091

[1987]).

As for the cold light of logic and experience,

"[p]ermitting the police to make a warrantless arrest of a person

who answers the door (or who is properly summoned to the door

. . .)" has been described as "mak[ing] great sense" (3 Wayne R.

LaFave, Search and Seizure § 6.1[e] [5th ed. 2012]). Under that

rule, to which we have consistently adhered, 

"the police are quite properly relieved from

having to obtain arrest warrants in a large

number of cases in advance, and the warrant

process is thereby not overtaxed (thus giving

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greater assurance it will not become a

mechanical routine). But if in a particular

case in which there were no exigent

circumstances to start with the intended

arrestee at the door elects to exercise the

security of the premises by not submitting to

the arrest, then it is hardly unfair that the

police should be required to withdraw and

return another time with a warrant" 

(id.). In contrast, the Supreme Court has rejected the approach

advanced by defendant -- and that forms the basis of the

reasoning of two of the dissenters (see Wilson, J., Dissent op.,

at 14-17; Rivera, J., Dissent Op at 18-19) -- that "fault[s] law

enforcement officers if, after acquiring evidence that is

sufficient to establish probable cause to search particular

premises, the officers do not seek a warrant but instead knock on

the door and seek . . . to speak with an occupant" (Kentucky v

King, 563 US at 466). The Court explained that such an approach

"unjustifiably interferes with legitimate law enforcement

strategies" (id.).9

In short, there is no compelling justification to

overrule our prior cases in order to expand Harris by recognizing

a new category of Payton violations based on subjective police

9 In contrast to Judge Wilson's unsupported assumptions

about the "relative ease of securing an arrest warrant" (Wilson,

J., Dissent Op, at 17), the Supreme Court observed that "the

police may want to ask an occupant of the premises for consent to

search because doing so is simpler, faster, and less burdensome

than applying for a warrant" and that such a reason is "entirely

proper" (Kentucky v King, 563 US at 466-467). In any event,

there may be many legitimate reasons why it would be impractical

in a particular situation to obtain a warrant or wait for a

defendant to exit the home.

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intent. Rather, overruling our prior cases would present an

unacceptable obstruction to law enforcement, eliminate a clear

and workable rule that has guided the courts for decades,

undermine predictability in the law and reliance upon our

decisions, and suggest that "our decisions arise [not] from a

continuum of legal principle[,] [but] the personal caprice of the

members of this Court" (Peque, 22 NY3d at 194). Such a result is

untenable.

V.

Defendant's remaining arguments do not require extended

discussion. His additional challenges to the legality of his

arrest and the lack of attenuation of his subsequent statements

from that arrest are either unpreserved, academic or unreviewable

pursuant to the LaFontaine/Concepcion rule, which precludes us

"from reviewing an issue that was either decided in an

appellant's favor or was not decided by the trial court" (People

v Ingram, 18 NY3d 948, 949 [2012]; see People v Concepcion, 17

NY3d 192 [2011]; People v LaFontaine, 92 NY2d 470 [1998]).10 His

10 With respect to the issue of defendant's reasonable

expectation of privacy addressed by Judge Rivera in her dissent,

in People v Hansen, 99 NY2d 339, 346 n 6 [2003], affg 290 AD2d 47

[2002]), this Court recognized that a "distinction" can exist

"between the two residences -- a single-family house and a twofamily house -- impacting the constitutional analysis" (Rivera,

J., Dissent op., at 6). Therefore, the burden was on defendant

to establish a reasonable expectation of privacy in the shared

area of the two-family house (see e.g. People v Leach, 21 NY3d

969 [2013]). Defendant, however, not only made no specific offer

of proof, but also failed to make any arguments in this regard

and, thus, the issue is not preserved for our review (see CPL

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claim that his statement to police was involuntary presents a

mixed question, and there is record support for the conclusion of

the Appellate Division to the contrary. Finally, defendant's

challenge to his persistent felony offender adjudication is

governed by our decision in People v Prindle (29 NY3d 463

[2017]), which requires an affirmance here. Contrary to

defendant's contentions, neither Hurst v Florida (___ US ___, 136

S Ct 616 [2016]) nor Descamps v United States (___ US ___, 133 S

Ct 2276 [2013]) compels a different result. Nor have any new

reasons been presented that would otherwise require us to retreat

from an interpretation that we reaffirmed as recently as Prindle.

Accordingly, the order of the Appellate Division should

be affirmed.

470.05 [2]).

- 20 -
People v Sean Garvin

No. 82 

FAHEY, J. (dissenting in part):

I would vacate defendant's sentence and remit to

Supreme Court for resentencing. New York's persistent felony

offender sentencing scheme is unconstitutional under Apprendi v

New Jersey (530 US 466 [2000]). I disagree with this Court's

line of cases from People v Rosen (96 NY2d 329 [2001]) to People

v Prindle (29 NY3d 463 [2017]), holding that the statutory

sentencing scheme lies "outside the scope of the Apprendi rule,

because it exposes defendants to an enhanced sentencing range

based only on the existence of two prior felony convictions"

(Prindle, 29 NY3d at 466). However, I agree with the majority's

analysis of the Payton issue in this case and with the Court's

disposition of defendant's remaining arguments. Consequently, I

dissent, but only in part.

I.

A persistent felony offender is, by definition, an

individual, "other than a persistent violent felony offender as

defined in [Penal Law] section 70.08, who stands convicted of a

felony after having previously been convicted of two or more

felonies," specifically defined (Penal Law § 70.10 [1] [a]). 

Being a "persistent felony offender" is, however, only one of two

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necessary conditions for the imposition of an enhanced sentence

under the pertinent sentencing statute, Penal Law § 70.10. The

other necessary condition is that the sentencing court must be of

the reasoned opinion, as set out in the sentencing record, "that

the history and character of the defendant and the nature and

circumstances of his criminal conduct indicate that extended

incarceration and life-time supervision will best serve the

public interest" (Penal Law § 70.10 [2]). If the first necessary

condition is met, but not the second, a persistent felony

offender may not be given enhanced sentencing.

The Criminal Procedure Law confirms that both

conditions are necessary, and that neither is on its own

sufficient. Persistent felony offender enhanced sentencing "may

not be imposed unless . . . the court (a) has found that the

defendant is a persistent felony offender as defined in

subdivision one of section 70.10 of the penal law, and (b) is of

the opinion that the history and character of the defendant and

the nature and circumstances of his criminal conduct are such

that extended incarceration and lifetime supervision of the

defendant are warranted to best serve the public interest" (CPL

400.20 [1] [b] [emphases added]).

On the second prong, the sentencing court, in order to

reach the "opinion" that enhanced sentencing is warranted, "must

. . . make such findings of fact as it deems relevant" (CPL

400.20 [9] [emphasis added]). Moreover, a record of the basis

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for the sentencing court's findings must be set forth (see CPL

400.20 [3] [b]).

The two necessary conditions have differing standards

of proof. "A finding that the defendant is a persistent felony

offender, as defined in [Penal Law § 70.10 (1)], must be based

upon proof beyond a reasonable doubt by evidence admissible under

the rules applicable to the trial of the issue of guilt," whereas

"[m]atters pertaining to the defendant's history and character

and the nature and circumstances of his criminal conduct may be

established by any relevant evidence, not legally privileged,

regardless of admissibility under the exclusionary rules of

evidence, and the standard of proof with respect to such matters

shall be a preponderance of the evidence" (CPL 400.20 [5]).

II.

The United States Supreme Court held in Apprendi v New

Jersey (530 US 466) and its progeny that, under the Due Process

Clause of the Fourteenth Amendment and the right to a jury trial

guaranteed by the Sixth Amendment, a jury must determine each

element of a crime beyond a reasonable doubt, including any fact

that has the effect of increasing the prescribed range of

penalties to which a defendant is exposed at sentencing (see

Apprendi, 530 US at 489-490; see also Alleyne v United States,

133 S Ct 2151, 2155 [2013] ["Any fact that, by law, increases the

penalty for a crime is an 'element' that must be submitted to the

jury and found beyond a reasonable doubt"]). One exception is a

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fact admitted by the defendant (see Blakely v Washington, 542 US

296, 303 [2004]), and the other is the established fact of a

prior felony conviction (see Almendarez-Torres v United States,

523 US 224 [1998]).

At issue in Apprendi was a hate crime sentencing scheme

that allowed a judge to increase a defendant's penalty beyond the

maximum sentence range authorized for a particular crime, based

on the judge's finding by a preponderance of the evidence that

defendant committed a crime with the intent to intimidate based

on race, religion, color, gender, ethnicity, sexual orientation,

or handicap. Apprendi ruled that a jury, not a judge, must find,

beyond a reasonable doubt, that a defendant acted with such a

biased purpose, in order for the sentencing enhancement to be

imposed. The hate crime statute violated the Constitution

because it required a judge to find an element that would

increase the defendant's sentence, instead of submitting that

question of fact to the jury, and it allowed the judge to decide

the fact using a lesser standard of proof. 

In subsequent years, the Apprendi doctrine has been

applied "to instances involving plea bargains, sentencing

guidelines, criminal fines, mandatory minimums, and . . . capital

punishment" (Hurst v Florida, 136 S Ct 616, 621 [2016], citing

Blakely v Washington, 542 US 296; United States v Booker, 543 US

220 [2005]; S. Union Co. v United States, 132 S Ct 2344 [2012];

Alleyne, 133 S Ct 2151; Ring v Arizona, 536 US 584 [2002]).

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This Court first considered the import of Apprendi in

People v Rosen (96 NY2d 329), in which the defendant contended

that the persistent felony offender sentencing provisions of

Penal Law § 70.10 and CPL 400.20 (5) violated his right to trial

by jury under Apprendi. This Court analyzed the statutes as

follows:

"Under New York law, to be sentenced as a

persistent felony offender, the court must

first conclude that defendant had previously

been convicted of two or more felonies for

which a sentence of over one year was

imposed. Only after it has been established

that defendant is a twice prior convicted

felon may the sentencing court, based on the

preponderance of the evidence, review

'matters pertaining to the defendant's

history and character and the nature and

circumstances of his criminal conduct . . .

established by any relevant evidence, not

legally privileged' to determine whether

actually to issue an enhanced sentence (CPL

400.20 [5]). It is clear from the foregoing

statutory framework that the prior felony

convictions are the sole [determinant] of

whether a defendant is subject to enhanced

sentencing as a persistent felony offender." 

(Rosen, 96 NY2d at 334-335).

This analysis was fundamentally flawed. It is true, of

course, that under Penal Law § 70.10, for a defendant to be

sentenced as a persistent felony offender, the court must first

conclude that defendant had previously been convicted of two or

more felonies for which a sentence of over one year had been

imposed. That is the first necessary condition of persistent

felony offender enhanced sentencing. It is also true that the

sentencing court would only review the defendant's history and

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character and the nature and circumstances of his or her criminal

conduct after concluding that the first condition had been met. 

However, it was a complete non sequitur to conclude from these

propositions that prior felony convictions are the sole

determinant of whether a defendant is subject to persistent

felony offender enhanced sentencing.

The statute is clear that a defendant is subject to

enhanced sentencing -- i.e., may have enhanced sentencing imposed

on him -- as a persistent felony offender only if both statutory

necessary conditions are met. Only "[w]hen the court has found 

. . . that a person is a persistent felony offender, and . . . it

is of the opinion that the history and character of the defendant

and the nature and circumstances of his criminal conduct indicate

that extended incarceration and life-time supervision will best

serve the public interest," may the court impose the enhanced

sentence (Penal § 70.10 [2] [emphasis added]). 

The Rosen Court, after thus misreading the statutory

language, added that the sentencing court, in deciding whether

extended incarceration and life-time supervision will best serve

the public interest, is "only fulfilling its traditional role 

. . . in determining an appropriate sentence within the

permissible statutory range" (Rosen, 96 NY2d at 335). This

analysis, clearly designed to suggest that the second necessary

condition of persistent felony offender enhanced sentencing is

purely discretionary, rather than a fact-finding exercise,

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misstated the sentencing court's task. Deciding whether "the

history and character of the defendant and the nature and

circumstances of his criminal conduct indicate that extended

incarceration and life-time supervision will best serve the

public interest" (Penal § 70.10 [2]) is deciding a question that

has one of only two answers: yes, the public interest is best

served by extended incarceration and life-time supervision, or

no, it is not. It is not an exercise in determining a sentence

within a range. That comes later, when the sentencing court

actually imposes the sentence. Moreover, as the statutes

themselves clarify, the Penal § 70.10 (2) determination involves

making "findings of fact" (CPL 400.20 [9]). 

In People v Rivera (5 NY3d 61 [2005]), the defendant --

one of many to do so -- asked the Court to overturn Rosen. The

Court declined. While properly analyzing the question to be

"whether any facts beyond those essential to the jury's verdict

(other than prior convictions or admissions) were necessary for

the trial judge to impose the persistent felony offender

sentence" (Rivera, 5 NY3d at 65-66), the Court reiterated its

earlier flawed conclusion that a defendant's prior convictions

constitute the sole determinant for whether he or she is subject

to persistent felony offender sentencing, suggesting that Penal

Law § 70.10 "authorizes" sentencing as a persistent felony

offender "once the court finds persistent felony offender status"

(id. at 66). Rivera ignored the clear statutory language making

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the Penal Law § 70.10 (2) determination a necessary condition of

the imposition of persistent felony offender sentencing.

Contrary to Rivera, the mere existence of the prior

felonies is not a "sufficient condition[] for imposition of the

authorized sentence for recidivism" (Rivera, 5 NY3d at 68; see

also Prindle, 29 NY3d at 467), but only a necessary condition. 

As Chief Judge Kaye observed in her dissent,

"[f]itting the definition of a persistent

felony offender under Penal Law § 70.10 (1)

is necessary but not sufficient to render a

defendant eligible for enhanced sentencing

under CPL 400.20. Rather, an enhanced

sentence is available only for those who

additionally are found to be of such history

and character, and to have committed their

criminal conduct under such circumstances,

that extended incarceration and lifetime

supervision will best serve the public

interest. The persistent felony offender

statute thus stands in stark contrast to

Penal Law § 70.08, which requires that all

three-time violent felons be sentenced to an

indeterminate life term on the basis of the

prior convictions alone" (Rivera, 5 NY3d at

73 [Kaye, C.J., dissenting] [citation

omitted]).

Other Judges of this Court have dissented in persistent

felony offender sentencing cases for the same reason, among

others (see Rivera, 5 NY3d at 79-80 [Ciparick, J., dissenting];

People v Battles, 16 NY3d 54, 63-65 [2010] [Lippman, C.J.,

dissenting in part]; People v Giles, 24 NY3d 1066, 1073-1074

[2014] [Abdus-Salaam, J., dissenting]). As Judge Ciparick noted,

review of related statutes confirms Chief Judge Kaye's insight. 

"Had the Legislature intended for the inquiry to end at

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- 9 - No. 82

recidivism, it could, for example, have replicated the language

of Penal Law § 70.08, which mandates sentencing for persistent

violent felony offenders based solely on recidivism, or it could

have used the [similar] language of Penal Law § 70.04 or § 70.06

as it relates to second felony offenders and second violent

felony offenders" (Rivera, 5 NY3d at 80 [Ciparick, J.,

dissenting]).

III.

The Rivera Court further erred by holding that a

sentencing court's Penal Law § 70.10 (2) determination -- that

the defendant's character and criminality indicate that the

public interest is best served by extended incarceration and

life-time supervision -- "describes the exercise of judicial

discretion characteristic of indeterminate sentencing schemes"

(id. at 66) and "falls squarely within the most traditional

discretionary sentencing role of the judge" (id. at 69). As the

Court put it, "[o]nce the defendant is adjudicated a persistent

felony offender, the requirement that the sentencing justice

reach an opinion as to the defendant's history and character is

merely another way of saying that the court should exercise its

discretion" (id. at 71).

This was an attempt to give an alternate source of

support for the Rosen Court's notion that a sentencing court's

determination that enhanced sentencing would serve the public

interest was simply a matter of the sentencing court's

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- 10 - No. 82

"fulfilling its traditional role" (Rosen, 96 NY2d at 335). In a

footnote, the Rivera Court suggested that judicial findings

prohibited by Apprendi "relate to the crime for which the

defendant was on trial and, as quintessential fact questions,

would properly have been subject to proof before the jury, in

stark contrast to traditional sentencing analysis of factors like

the defendant's difficult childhood, remorse or self-perceived

economic dependence on a life of crime" (Rivera, 5 NY3d at 69 n

8). 

Rivera, however, was inconsistent with Apprendi and its

progeny. The exercise of determining whether enhanced sentencing

would serve the public interest may involve the application of

the sentencing judge's discretion, but it is no less factual for

being, in the end, discretionary in nature. In order to exercise

discretion on the subject of whether enhanced sentencing would

serve the public interest, the sentencing court must first make

findings concerning "the facts surrounding defendant's history

and character" (Rivera, 5 NY3d at 67), or, as the Criminal

Procedure Law puts it, "must . . . make such findings of fact as

it deems relevant" (CPL 400.20 [9]). Furthermore, as Chief Judge

Kaye noted in her dissent in Rivera, the Supreme Court has made

it "clear that any factfinding essential to sentence enhancement

must be decided by a jury, even if it is general and unspecified

in nature, and even if the ultimate sentencing determination is

discretionary" (Rivera, 5 NY3d at 73-74 [Kaye, C.J., dissenting]

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- 11 - No. 82

[footnote omitted]).

The Supreme Court had clarified that point in Blakely v

Washington (542 US 296) [holding that Apprendi was violated where

the sentencing court had to find that defendant acted with

"deliberate cruelty" in order to impose enhanced sentencing]). 

In Blakely, the Supreme Court observed that "[w]hether the

judge's authority to impose an enhanced sentence depends on

finding a specified fact . . ., one of several specified facts .

. ., or any aggravating fact . . ., it remains the case that the

jury's verdict alone does not authorize the sentence. The judge

acquires that authority only upon finding some additional fact"

(Blakely, 542 US at 305). Moreover, the Supreme Court explained,

it does not "matter that the judge must, after finding

aggravating facts, make a judgment that they present a compelling

ground for departure. He [or she] cannot make that judgment

without finding some facts to support it beyond the bare elements

of the offense. Whether the judicially determined facts require

a sentence enhancement or merely allow it, the verdict alone does

not authorize the sentence" (Blakely, 542 US at 305 n 8). In

other words, "broad discretion to decide what facts may support

an enhanced sentence, or to determine whether an enhanced

sentence is warranted in any particular case, does not shield a

sentencing system from [Apprendi]. If the jury's verdict alone

does not authorize the sentence, if, instead, the judge must find

an additional fact to impose the longer term, the Sixth Amendment

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requirement is not satisfied" (Cunningham v California, 549 US

270, 290 [2007]).

Rivera, like Rosen before it, was not correctly

decided, because the findings contemplated by Penal Law § 70.10

(2) involve facts that have the effect of increasing the

prescribed range of penalties to which a defendant is exposed at

sentencing, within the meaning of Apprendi. In sum, it is clear

that a sentencing court, in deciding "that the history and

character of the defendant and the nature and circumstances of

his criminal conduct indicate that extended incarceration and

life-time supervision will best serve the public interest" (Penal

Law § 70.10 [2]), is necessarily making factual findings that

must instead be made by the jury, under Apprendi.

IV.

"The constitutionality of sentences imposed under this

sentencing scheme has, not surprisingly, been a practically

constant subject of litigation since Apprendi" (Battles, 16 NY3d

at 61 [Lippman, C.J., dissenting in part]). In the years since

Rosen and Rivera, this Court has reiterated the misguided

analysis provided in those opinions: that the first prong of

Penal Law § 70.10 is the sole determinant of persistent felony

offender sentencing, and that "New York's sentencing scheme, by

requiring that sentencing courts consider defendant's 'history

and character' and the 'nature and circumstances' of defendant's

conduct in deciding where, within a range, to impose an enhanced

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sentence, sets the parameters for the performance of one of the

sentencing court's most traditional and basic functions, i.e.,

the exercise of sentencing discretion" (People v Quinones, 12

NY3d 116, 130 [2009]; see also Prindle, 29 NY3d at 466-467). 

The foregoing discussion of the statutes, however,

demonstrates that Penal Law § 70.10 (2) is a separate necessary

condition, and does not simply allow a sentencing court to

"decid[e] where, within a range, to impose an enhanced sentence"

(Quinones, 12 NY3d at 130); rather, it requires that a sentencing

court decide whether the factual circumstances of defendant's

crimes and character warrant enhanced sentencing, before

imposition of any enhanced sentence is permissible.

As my colleague Judge Abdus-Salaam wrote, a "recitation

of the statutory terms suffices to show that . . . the persistent

felony offender sentencing scheme violates the Apprendi rule,"

and the Court's "Apprendi precedents have devolved into hollow

and discredited words supporting a clearly unconstitutional

sentencing framework" (Giles, 24 NY3d at 1074, 1076 [AbdusSalaam, J., dissenting]).

V.

I do not quarrel with the majority's statement that the

resolution of the Apprendi issue here "is governed by" our

precedents (majority op at 16), but I believe there is 

"compelling justification for" overruling our prior holdings in

this area, because they "create[] more questions than [they]

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resolve[]" and "no longer serve[] the ends of justice or

withstand[] the cold light of logic and experience" (People v

Peque, 22 NY3d 168, 194 [2013] [internal quotation marks and

citations omitted]).

I add a final comment on their larger significance and

"real effect" (Battles, 16 NY3d at 65 [Lippman, C.J., dissenting

in part]) in our system of justice. Exposing defendants to

criminal penalties more severe than could be imposed based upon

the jury verdict and prior convictions alone, without a jury

making the factual determinations necessary for the enhancement

in punishment, is abhorrent not only to the Federal Constitution

but also to basic justice. For example, under Penal Law § 70.10,

a non-violent serial shoplifter convicted of criminal possession

of stolen property in the fourth degree, a class E felony for

which the maximum sentence is four years' imprisonment (see Penal

Law § 70.00 [2] [e]), may be given "the sentence of imprisonment

authorized by [Penal Law § 70.00] for a class A-I felony" (Penal

Law § 70.10 [2]), which is a minimum sentence of 15 years to life

(see Penal Law § 70.00 [3] [a] [i]; see People v Ellison, 124

AD3d 1230 [4th Dept 2015], lv denied 25 NY3d 1201 [2015], vacated

and motion for writ of error coram nobis granted, 136 AD3d 1354

[2016] [granting motion in light of defense counsel's failure to

challenge finding that defendant is a persistent felony

offender]). Applying the Court's interpretation of the statutory

sentencing scheme allows a judge, without jury factfinding on the

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factual circumstances of defendant's history and character, to

punish such a shoplifter with the penalty associated with violent

crimes such as kidnapping in the first degree (Penal Law §

135.25), aggravated murder (Penal Law § 125.26), or murder in the

first or second degree (Penal Law §§ 125.27; 125.25). Silence in

the face of such injustice would amount to acquiescence. 

Accordingly, I dissent.

- 15 -
People v Sean Garvin

No. 82 

RIVERA, J.(dissenting):

The Fourth Amendment and our State Constitution provide

"the right of the people to be secure in their persons, houses,

papers and effects, against unreasonable searches and seizures"

(US Const, 4th Amend; NY Const, art I, § 12; Payton v New York,

445 US 573, 576 [1980]). These constitutional protections

afforded individuals reflect the societal recognition of the home

as "the sacred retreat to which families repair for their privacy

and their daily way of living" (Gregory v City of Chicago, 394 US

111, 125 [1969] [Black, J. concurring]). Hence, a warrantless

entry by police to effectuate a home arrest, the most intrusive

of government invasions into a person's privacy, is

"presumptively unreasonable" (Payton v New York, 445 US 573, 586

[1980]). The People bear "the burden of overcoming that

presumption" (People v Hodge, 44 NY2d 553, 557 [1978]), and thus

"defendant has no burden to show he had an 'expectation of

privacy' in his apartment" (People v Levan, 62 NY2d 139, 144

[1984]).

The People did not rebut that presumption here because

they failed to establish, as a constitutional matter, that

defendant lacked any reasonable expectation of privacy in the

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location of the house where he was arrested, and that the arrest

comes within one of the "carefully delineated" narrow exceptions

to the warrant requirement (People v Molnar, 98 NY2d 328, 331

[2002], citing Welsh v Wisconsin, 466 US 740, 749-750 [1984]). 

This is enough, in my opinion, to find the police violated

defendant's rights. However, the unreasonable intrusions that

mark this case are not limited to a single constitutional

violation caused by entering the commonly-shared areas of a twofamily house. The People also failed to justify the police visit

to defendant's home for the sole purpose of making a warrantless

arrest, as this action undermined defendant's constitutionally

protected indelible right to counsel (NY Const, art I, § 6;

People v Lopez, 16 NY3d 375, 377 [2011]). Therefore, unlike the

majority, I conclude that defendant's post-arrest statements were

obtained in violation of his rights, and I dissent. 

I.

A.

After establishing probable cause for defendant's

arrest, the police proceeded without a warrant to his home to

make the arrest. Within minutes of arriving at the home, the

police made two uninvited and unannounced entries through the

front door of the two-family house where defendant lived. Both

times they walked through the vestibule immediately behind the

front door and proceeded up the stairs that lead to defendant's

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second-floor apartment. At the top of the stairs the police

knocked and spoke briefly to the person who opened the door. On

the second trip through defendant's house and back up the stairs, 

the police again knocked on defendant's apartment door, and this

time, when defendant opened the door and while standing in the

doorway, the police told him he was under arrest.

The People incorrectly argue that defendant has

absolutely no privacy expectation in the area between the front

door of the house and the door leading directly to his living

space because his privacy interests only attach on the apartment

side of the upstairs door threshold. In support of this claim,

the People rely on evidence at the suppression hearing that

established that defendant lived in a second floor apartment of a

two-family house. That alone, however, is insufficient to meet

the People's heavy burden.1 The constitutional inquiry centers

on whether it was reasonable for defendant to assume that the

1 The majority recognizes that a resident of a two-family

house may have a privacy interest in a common area, yet suggests

that we have previously decided that the burden of establishing

this interest always shifts to defendant. The citation to People

v Leach (21 NY3d 969 [2013]), however, betrays the infirmity of

this position. In that case, defendant resided in his

grandmother's apartment, and there was record support that his

grandmother did not want defendant to have unfettered access to

all areas of the apartment, including a guest room used solely by

other grandchildren in which a weapon was found (id. at 971-972). 

This suggests nothing about an individual's expectation of

privacy inside the shared, enclosed hallway of their two-family

home -- defendant here does not claim to have a reasonable

expectation of privacy in his downstairs neighbor's living

quarters.

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vestibule and stairway inside his house are private areas, which

the police may not enter without consent or some other lawful

basis (Levan, 62 NY2d at 141). 

It is a basic principle of article I, section 12 of the

New York Constitution and the Fourth Amendment to the United

States Constitution that warrantless searches and seizures inside

a home are presumptively unreasonable (People v Knapp, 52 NY2d

689, 694 [1981]; Brigham City, Utah v Stuart, 547 US 398, 403

[2006]). This holds true even in a two-family house where the

residents share common areas. The United States Supreme Court

has made clear that an individual can have a reasonable

expectation of privacy in an area despite not having its

exclusive use (Mancusi v DeForte, 392 US 364, 368 [1968]). 

Further, the United States Supreme Court long ago rejected the

notion that a defendant has no privacy expectations simply

because a space may be accessible to the public since what a

defendant "seeks to preserve as private, even in an area

accessible to the public, may be constitutionally protected"

(Katz v United States, 389 U.S. 347, 351 [1967]). Thus, the fact

that defendant lived in the second floor apartment of a twofamily house does not automatically strip him of the

constitutional protections afforded to the residents of the house

in areas that they share in common. The concept of the house as

a home would be meaningless if it could be so easily

compartmentalized into publicly unprotected spheres.

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Even under the majority's analysis that the current law

establishes a bright-line rule that the police may not cross the

house threshold to make a warrantless arrest (maj op at 6), I

cannot agree that the threshold is yards beyond the front door of

the house and up a flight of stairs. Whether it is reasonable to

view this area as holding some modicum of privacy depends on the

relationship between the individual and the space (Katz, 389 US

at 351). Residents would not imagine that simply by living in a

two-family house, they effectively forfeit their privacy to all

areas except for that space which is not commonly shared by the

residents of the house or invited guests. Nor would they believe

that they have exited their "sacred retreat" and the sanctuary of

their home by stepping into an area with limited access to

outsiders. Human experience leads to the conclusion that a

resident of an upstairs living area in a two-family house has a

privacy interest effective at the door leading into the building. 

The purpose of a front door to someone's home is to ensure the

privacy and security of those living behind it. It signals for

all who approach that the home is not a public venue. When one

approaches a door to a house, one seeks permission to enter

because of our common understanding that this is a private

residence. 

Unrelated co-habitants with individual apartments in a

two-family house may share the doorway vestibule area and the

steps leading to various parts of the home, storing personal

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- 6 - No. 82

items and engaging in private conversations in these spaces,

further illustrating that these living arrangements are based on

the presumption that the space behind the front door is part of

the home and within the residents' zone of privacy. Even the

shared use of common areas by other residents and guests, "does

not render such areas 'public' with respect to the constitutional

prerequisites for permissible entry by the police" (People v

Garriga, 189 AD2d 236, 241 [1st Dept 1993]). It is one thing to

accept that in a shared home you will come across other residents

at the front door, in the hallway, perhaps at the steps leading

to the basement, attic, or upstairs apartment; it is quite

another to give up all rights to privacy from government

intrusion into these same shared spaces. The former is a

necessary and inherent consequence of the living arrangement

itself, the latter requires voluntary abnegation of all

expectations of privacy. Absent conduct by residents suggesting

a shared environment is actually public, a resident of a twofamily house is entitled to the same constitutional protections

as those in a single-family house in these common areas. There

is no distinction as matter of law between the two residences --

a single-family house and a two-family house -- impacting the

constitutional analysis. 

There are also societal interests in protecting a

resident's privacy in these common areas of the home (Oliver v

United States, 466 US 170, 178 [1984] ["In assessing the degree

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- 7 - No. 82

to which a search infringes upon individual privacy, the Court

has given weight to such factors as the intention of the Framers

of the Fourth Amendment . . . and our societal understanding that

certain areas deserve the most scrupulous protection from

government invasion."]; Johnson v United States, 333 US 10, 14

[1948] ["The right of officers to thrust themselves into a home

is also a grave concern, not only to the individual but to a

society which chooses to dwell in reasonable security and freedom

from surveillance."]). The conception of "home" may "extend to

facilities shared by several persons not related to each other"

(see Powell, 54 NY2d at 531). People's lives are not so atomized

and impersonal in these shared environments to negate the

constitutional protection of privacy afforded a resident whose

home includes communal space. As our shared living arrangements

necessarily reflect family commitments, evolving social norms,

limited personal finances, and market forces that drive housing

preferences and vacancy rates, these factors redefine concepts of

"intimacy" and communal interaction. Residents, like defendant,

should not be penalized and stripped of their constitutional

protections based on choices driven, in part, by financial and

family concerns (Garriga, 189 AD2d at 241).

Here, the People failed to present any evidence that

defendant's expectation of privacy in the shared area of a twofamily house should be treated any differently from that of a

resident living in a single-family house. Nor did they establish

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that defendant's expectation is unreasonable as a constitutional

matter because he had forgone any privacy interest in the

entrance to the house and the stairs leading to his apartment. 

The People did not introduce evidence that the vestibule and

staircase were generally open and accessible to the public. 

There was no testimony that the officers observed unannounced

people freely entering and exiting the house (cf. People v

Hansen, 290 AD2d 47, 52-53 [2002] [testimony established hallway

of two-family home was "a public hallway, open to anyone who

wants to walk in off the street"]). The police did not even

testify as to how the front door was open, thus failing to

establish the means for some public access to this area, or that

they had consent to enter the house. Even if the vestibule was

accessible to the public, the people failed to elicit evidence to

suggest that defendant did not have an expectation of privacy to

the only internal means to reach him: the steps and area

immediately outside his apartment door. It is the People's

burden to rebut the presumption that the space was private, and

their evidence fell far short of establishing a basis for the

police to cross the "firm line at the entrance of the house" that

marks the constitutional perimeter of the "home" (Payton, 445 US

at 590; Kirk v Louisiana, 536 US 635, 638 [2002]; Hodge, 44 NY2d

at 557). 

The People argue that defendant had no more privacy

interest in the vestibule and stairs leading to his second-floor

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- 9 - No. 82

living space than a tenant in a large apartment complex or multiunit apartment building has in the building lobby and stairwell. 

This comparison ignores the intimacy inherent in living in a

house that distinguishes it from a multi-unit building where the

first floor is open and accessible to the public. Unlike the

small foyer entry of a home which is closed off to the public, a

building lobby may be open to the public and serve as an

extension of the steps or path leading to the building. As such,

the lobby is transformed into public space, where strangers walk

through and sometimes ascend the stairs. For some buildings, a

visitor must enter the lobby in order to be announced to the

tenant. For these reasons we have held that "hallways and

stairways of large multiple dwellings, where delivery [and]

service [personnel], visitors and other strangers are continually

moving, must be considered public places" (People v Peters, 18

NY2d 238, 244 [1966], affd sub nom Sibron v New York, 392 US 40

[1968]; see also People v Powell, 54 NY2d 524 [1981] [lobby of

six story men's shelter was public place and not part of home];

cf. People v Allen, 54 AD3d 868, 869 [2d Dept 2008] ["Although

the apartment building had only six apartments, the defendant

failed to demonstrate that he had any legitimate expectation of

privacy in the apartment building's vestibule, as it was

accessible to all tenants and their invitees."]). Given the

number of people who pass through a lobby, tenants in these

multiple-unit dwellings have a diminished expectation of privacy

- 9 -
- 10 - No. 82

in these open, publicly-accessible spaces that is not experienced

by persons who share closed, common areas in a two-family house.

Other jurisdictions have recognized the need for some

evidence of public access akin to that found in a larger, multiunit building before reducing residents' expectations of privacy. 

The Sixth Circuit, for example, has held that the "nature of the

living arrangement in a duplex, as opposed to a multi-unit

building, leads [to the conclusion] that a tenant in a duplex has

a reasonable expectation of privacy in common areas shared only

by the duplex's tenants and the landlady" (United States v King,

227 F3d 732, 746 [6th Cir 2000], quoting United States v

McCaster, 193 F3d 930, 935 [8th Cir 1999] [Heaney, J. concurring

in part and dissenting in part]). The Ninth Circuit has

similarly held that in a building containing two apartments and

the landlord's living quarters, the tenants "exercised

considerably more control over access to [the entry way to the

two apartments] than would be true in a multi-unit complex, and

hence could reasonably be said to have a greater reasonable

expectation of privacy than would be true of occupants of large

apartment buildings" (United States v Fluker, 543 F2d 709, 716

[9th Cir 1976]). The Supreme Court of Connecticut has held that

a defendant has an expectation of privacy in the common basement

of a two-family house (State v Reddick, 207 Conn 323, 332 [Conn

1988]). As the Fifth Circuit has noted, "[c]ontemporary concepts

of living such as multi-unit dwellings must not dilute [a

- 10 -
- 11 - No. 82

defendant's] right to privacy any more than is absolutely

required" (Fixel v Wainwright, 492 F2d 480, 484 [5th Cir 1974]). 

Like other persons living in two-family houses, absent

evidence evincing intent to create an "open house" environment,

defendant had a reasonable expectation of privacy in the

vestibule and staircase for these constituted part of his home. 

As such, he was entitled to the constitutional protection against

a warrantless home arrest, and the police entry violated Payton.2

B.

Contrary to the People's argument the issue is

preserved for our review. In order to preserve an issue, a

defendant must register a protest at a time when the court has

the opportunity of effectively altering its response (see CPL

470.05 [2], People v Graham, 25 NY3d 994, 996 [2015]). Here,

defense counsel argued that the Police entered defendant's home

in violation of Payton, and the People responded that he had no

legitimate right to privacy in the hallway. Defense counsel

argued that since the police were "unaware as to how they gained

entry into the two-family home," the judge should be careful when

considering Payton, as there was no testimony defendant "actually

exited the residence before he was arrested." This protest

2 Nor did the People establish that the warrantless arrest

was justified under one of the narrow exceptions to the warrant

requirement, such as when emergency aid is required, when in hot

pursuit of a fleeing suspect, to prevent the imminent destruction

of evidence, etc. (see Kentucky v King, 563 US 452, 460 [2011]).

- 11 -
- 12 - No. 82

sufficiently preserved the issue. 

Even assuming arguendo that defense counsel's

statements lacked specificity, an issue is preserved if "the

court expressly decided the question raised on appeal" (CPL

470.05 [2]). The court, by necessity if not implication, decided

that defendant had no privacy interest in the area between the

front doorway and the door leading to defendant's living space

when it denied defendant's motion to suppress and concluded the

arrest was outside the home because it was conducted "in the

hallway of his apartment building." Unsurprisingly, the

Appellate Division treated the issue as preserved, holding that

"where the defendant lived in the upstairs apartment of a

building containing two separate apartments, there is clearly a

"distinction between homes and common areas such as halls and

lobbies . . . which are not within an individual tenant's zone of

privacy" (People v Garvin, 130 AD3d 644, 645 [2d Dept 2015]

[internal quotation omitted]).

II.

A.

There is a second ground for concluding the arrest is

constitutionally invalid. Like Judge Wilson, I would apply

Payton where, as here, the sole reason the police went to

defendant's home was to effect his arrest, and in doing so

without a warrant, they undermined defendant's indelible right to

- 12 -
- 13 - No. 82

counsel. I agree with Judge Wilson that the majority's reasons

for not applying Payton are unpersuasive (Wilson, J. dissenting

7-11). I write separately to discuss the interplay between these

constitutional protections.

B.

"[W]e have delineated an independent body of search and

seizure law under the State Constitution" that implicates the

State's indelible right to counsel (People v Harris, 77 NY2d 434,

438 [1991]). As the Court has emphasized,

"The safeguards guaranteed by this State's

Right to Counsel Clause are unique (NY Const,

art I, § 6). By constitutional and statutory

interpretation, we have established a

protective body of law in this area resting

on concerns of due process,

self-incrimination and the right to counsel

provisions of the State Constitution which is

substantially greater than that recognized by

other State jurisdictions and far more

expansive than the Federal counterpart. The

Court has described the New York rule as a

'cherished principle,' rooted in this State's

prerevolutionary constitutional law and

developed 'independent of its Federal

counterpart.' The highest degree of judicial

vigilance is required to safeguard it. 

Manifestly, protection of the right to

counsel has become a matter of singular

concern in New York and it is appropriate

that we consider the effect of Payton

violations upon it" (Harris, 77 NY2d at 439

[internal citations omitted]).

In New York, the indelible right to counsel attaches

when the police commence formal proceedings by filing an

accusatory instrument (People v Samuels, 49 NY2d 218, 221

- 13 -
- 14 - No. 82

[1980]). Under the Criminal Procedure Law, an arrest warrant may

not issue until an accusatory instrument has been filed (CPL

120.20). "Thus, in New York once an arrest warrant is

authorized, criminal proceedings have begun, the indelible right

to counsel attaches and police may not question a suspect in the

absence of an attorney" (Harris, 77 NY2d at 440, citing Samuels,

49 NY2d at 221-222). It would be the simplest of things for

police to avoid the mandates of our Constitution and sidestep a

defendant's indelible right to counsel by visiting a defendant

solely to effectuate a house arrest without a warrant. Surely

that is not what we intended when this Court recognized the

broader protections afforded under our constitution (People v

Bing, 76 NY2d 331, 339 [1990] [State right to counsel "far more

expansive than the Federal counterpart"]).

Fourth Amendment jurisprudence and our independent

analysis under our constitutional search and seizure and

indelible right to counsel provisions dictate that defendant's

statements were obtained in violation of his constitutional

rights. Any other decision would make it too easy for police to

avoid the warrant requirement and its attendant right to counsel. 

As my dissenting colleague points out, there are various ways in

which the "doorway threshold" rule adopted by the majority

undermines defendant's rights and potentially escalates the

tension inherent in a visit from the police (J. Wilson dissent at

13-16). An attempted warrantless home arrest places a defendant

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- 15 - No. 82

in the dangerous position of risking a forced entry if defendant

refuses to open the door, or after initially opening and then

attempting to close the door to retreat inside. These actions

may raise suspicion or suggest the existence of exigent

circumstance. Police may very well believe, for example, that

evidence is being or about to be destroyed, that defendant is

attempting to secure a weapon, placing the officers in imminent

danger of bodily harm, or that defendant is attempting to flee

(see People v McBride, 14 NY3d 440 [2010]; People v Riffas, 120

AD3d 1438 [2d Dept 2014]). A rule that prevents these situations

benefits defendants, police, and society.

We must be mindful that the police interaction

illustrated by this case implicates express constitutional

provisions intended to protect the individual from government

overreach and abuse of power -- the right to be secure from

unreasonable warrantless government intrusions of the home, and

the indelible right to counsel -- and, as such, requires robust 

judicial oversight. The Court has made it abundantly clear that

our "independent body of search and seizure law" be read so as to

"best promote[] the protection of the individual rights" of the

People of the State of New York, and that our indelible right to

counsel is a "cherished principle" entitled to "[t]he highest

degree of judicial vigilance . . . to safeguard it" (Harris, 77

NY2d at 438, 439 [internal quotation marks and citations

omitted]; see also People v Lopez, 16 NY3d 375, 380 [2011];

- 15 -
- 16 - No. 82

People v Jones, 2 NY3d 235, 240 [2004]). 

This right to counsel must be kept inviolate. 

Otherwise, we would encourage warrantless home arrests and

normalize behavior that both the State and Federal Constitutions

expressly prohibit. The possibility of suppressing unlawfully

obtained information is insufficient to offset countervailing

forces seeking to secure inculpatory information. We have warned

against this danger in the federal context where the right to

counsel does not attach with the issuance of an arrest warrant

(Harris, 77 NY2d at 440). The practical effect of the federal

rules "is that little incentive exists for police to evade Payton

in the hopes of securing a statement" and "the incremental

deterrent resulting from suppressing statements made afer an

illegal arrest in the home [is] minimal" (Harris, 77 NY2d at

440). 

Federal law does not dictate or guide the analysis of

our broader protections under the State Constitution (People v

P.J. Video, Inc., 68 NY2d 296, 304 [1986] ["[T]his [C]ourt has

adopted independent standards under the State Constitution when

doing so best promotes predictability and precision in judicial

review of search and seizure cases and the protection of the

individual rights of our citizens."]). In any case, federal

jurisprudence does not support the conclusion that every

warrantless threshold arrest is constitutionally permissible. 

Significantly, the specific question presented in defendant's

- 16 -
- 17 - No. 82

appeal -- whether a warrantless home arrest is permissible when

the police summon a person to the door for the sole purpose of

making an arrest -- is an open question not resolved by United

States Supreme Court precedent. Contrary to the majority's

conclusion, King v Kentucky (563 US 452 [2011]) does not provide

clear guidance as to how the Supreme Court would rule if the

question were squarely presented to that Court (maj op at 15). 

In King, the Court considered the limited question of

the circumstances under which police impermissibly create an

exigency (563 US at 470). Officers ended up outside the

defendant's apartment immediately after a fellow officer observed

a controlled drug buy involving a resident of a neighboring

apartment. Smelling marijuana smoke, they banged on the

apartment door, and announced themselves as police (id. at 456). 

Immediately afterwards they heard people and things moving inside

the apartment, leading them to believe that evidence was about to

be destroyed, at which point they forcibly entered by kicking in

the door (id.). The Supreme Court held that the officers'

conduct was entirely consistent with the Fourth Amendment (id. at

471). In contrast to King, here the police had probable cause

before they set out to defendant's apartment, and yet went

directly to his home with the sole intention of making a

warrantless arrest, without any suggestion of exigent

circumstances. Their intent in avoiding the warrant requirement

was not solely to make an inquiry, gather more evidence, or seek

- 17 -
- 18 - No. 82

consent for a search (id. at 466-467), but to arrest defendant,

take him to the precinct, and ask him questions outside the

presence of a lawyer.3

In upholding the warrantless search in King, the Court

recognized that the police may approach a suspect, even in the

privacy of the person's home to ask questions, because "[w]hen

law enforcement officers who are not armed with a warrant knock

on a door, they do no more than any private [person] might do"

(id. at 469). However, when law enforcement's only reason to

approach a person at the home is to make an arrest, the police

are attempting something quite different from the uninvited knock

of the average person. It is true that a suspect can lawfully

ignore a police officer's knock and inquiry (id. at 469-470

["[W]hether 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."]). 

In reality, it cannot be denied that a police officer's statement

carries the force of an official command not easily disregarded. 

Of course, the presence of the police at one's home for any

3 The majority's claim that the Court has rejected the

subjective approach and only considers the reasonableness of

police conduct misses the point (maj op at 15-16). The

undisputed purpose of the police visit to the defendant's home is

an appropriate consideration here, just as it was in King. As

Judge Wilson and I explain, viewed objectively, the circumstances

did not justify the action, which was unreasonable and thus a

violation of defendant's rights (see King, 563 US at 464, citing

Brigham City, 547 US at 404; see Wilson, J. dissenting op at 13-

14). 

- 18 -
- 19 - No. 82

reason would cause concern or apprehension for anyone, but an

officer seeking to make an arrest intensifies this natural

reaction.

Furthermore, as the majority acknowledges (maj op at

9), there are federal Circuit Courts that have interpreted the

Fourth Amendment to prohibit certain warrantless home arrests

outside the home as Payton violations (see Fisher v City of San

Jose, 558 F3d 1069, 1074–75 [9th Cir 2009] [en banc] [defendant

seized when police surrounded his home, even though arrest

happened outside]; United States v Saari, 272 F3d 804, 807–08

[6th Cir 2001] [defendant under arrest when cops knocked

forcefully on door with guns drawn]; United States v Reeves, 524

F3d 1161, 1165 [10th Cir 2008] [officers effectively commanding

defendant to open door constituted an arrest]; see also US v

Allen, 813 F3d 76, 81 [2nd Cir 2016] [recognizing circuit courts

holding officers may violate Payton without entering defendant's

home]). These decisions are animated by the purposes of the

Fourth Amendment to protect the individual's right to be secure

in the home and free from potential abuse and deployment of

coercive tactics that render the protections all but illusory. 

If the police determine that securing a warrant is too

time-consuming or impractical under the circumstances (not argued

here), the police may wait for a defendant to exit the home. Of

course, such a warrantless arrest is also subject to certain

constitutional constraints (see People v De Bour, 40 NY2d 210,

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- 20 - No. 82

222-223 [1976] [officers cannot ask pointed questions of an

individual without a founded suspicion that criminality is afoot,

cannot forcibly stop and detain without reasonable suspicion,

cannot arrest without probable cause]). So long as police action

comports with the law, the question of where to execute an arrest

is left to the discretion of the officials in charge.

III.

The police violated defendant's constitutional rights

against a warrantless home arrest and his indelible right to

counsel when they went to his home without a warrant for the sole

purpose of arresting him, and effectuated the arrest in the

absence of exigent circumstances. I dissent from the majority's

suggestion that such conduct is both constitutionally permissible

and a required outcome of our case law.

Whether this violation requires the reversal of

defendant's conviction is a different question and one not

properly before us on this appeal. In this case, because the

courts below did not address the People's alternative grounds in

support of defendant's conviction, the matter should be reversed

and remitted to permit consideration of those arguments.4

4 Given my conclusion that the matter should be remitted, I

do not opine on the merits of defendant's challenge to the

persistent felony offender statute (Penal Law § 70.10).

- 20 -
People v Sean Garvin

No. 82 

WILSON, J.(dissenting):

Absent exigent circumstances, officers planning to arrest a

suspect at home must obtain a warrant. The majority's analysis

neither satisfies the Federal and State Constitutions nor serves

the interests of New York citizens and law enforcement officers. 

Indeed, the precedents on which the majority relies "recognize

- 1 -
- 2 - No. 82

that it would have been more prudent if the police obtained a

warrant for defendant's arrest before going to his home" (People

v McBride, 14 NY3d 440, 447 [2010]). Because the police planned

to arrest him, did not obtain a warrant, and no exigent

circumstances were present, Mr. Garvin's threshold arrest was

unlawful and his case should be remanded to the Appellate

Division to consider whether the fruits of that arrest were

sufficiently attenuated to admit into evidence or whether any

error in admitting them was harmless beyond a reasonable doubt. 

I. Payton v New York and the United States Constitution

In Payton v New York (445 US 573 [1980]), the Supreme Court

held that, in the absence of exigent circumstances, the Fourth

Amendment prohibits law enforcement officials from making a

warrantless and nonconsensual entry into a suspect's home to

arrest him. Although Payton addressed one oft-reserved question

– whether and under what circumstances federal law enforcement

officers may enter the home of a suspect – it, and its failure to

grapple squarely with the legacy of United States v Santana (427

US 38 [1976]), raised numerous others.1 In United States v Allen

1 Among them: what constitutes a defendant's home, whether force

or ruses of various descriptions can induce a defendant to leave

it, how to determine the admissibility of statements made

subsequent to a violation, and if its protections apply when a

defendant either briefly exits his home and is pursued back into

it or is in the home of a third party. "In following the rule

- 2 -
- 3 - No. 82

(813 F3d 76 [2016]), the United States Court of Appeals for the

Second Circuit resolved two of the most vexing: where is the

threshold, and whose position relative to it is determinative? 

For the reasons stated in its thorough opinion, which I would

adopt in full, the Second Circuit concluded that "where law

enforcement officers summon a suspect to the door of his home and

place him under arrest while he remains within his home, in the

absence of exigent circumstances, Payton is violated regardless

of whether the officers physically cross the threshold" (id. at

88-89).2

The majority does not take issue with Allen's conclusion. 

Instead, it attempts to distinguish the facts of that case from

those before us (majority op. at 10). Dennis Allen, Jr. was

arrested "at the front door" or "inside the threshold" of his

home (Allen, 813 F3d at 78; id. at 79). Sean Garvin was arrested

"at the threshold" or "in the doorway" of his (People v Garvin,

130 AD3d 644, 645 [2d Dept 2015]); he did not step into the

hallway. Although the Appellate Division found, in language

enunciated in Payton, New York courts have had to resolve

numerous issues that have arisen in the wake of its

interpretation" (Barry Kamins, 1-3 New York Search & Seizure §

3.04 [2017]).

2 As the majority correctly points out, the Second Circuit did

not go so far as to require a warrant before the police could

arrest a suspect who voluntarily departed the home's confines and

joined the police on the exterior of the threshold prior to her

arrest (Allen, 813 F3d at 78 ["if Allen had come out of the

apartment into the street and been arrested there, no warrant

would be required"]).

- 3 -
- 4 - No. 82

borrowed from a prior opinion, that Mr. Garvin "voluntarily

emerged", there is nothing in its decision to indicate that he

emerged from the apartment and into the hall, as opposed to from

the recesses of the apartment to the door. In neither instance

did law enforcement officers enter the apartment. 

I understand the majority to be saying that the factfinders

concluded Mr. Allen was inside his apartment, beside the open

door, where Mr. Garvin had advanced until he was standing between

the doorjambs: his toes in the hallway; his heels in his home. 

Under the majority's rule, the threshold is the narrow area

between the doorjambs, and a suspect who pierces the plane of the

door with any part of his body, for any length of time, forgoes

the protection of his home. Under its interpretation of the

Appellate Division's findings, Mr. Garvin (however unwittingly)

did exactly that.

We are bound by the findings of fact made by the Appellate

Division. I am not bound, however, by the majority's

interpretation of those findings, and I see nothing in the

Appellate Division's choice of prepositions that constitutes a

finding that the People met their burden to prove Mr. Garvin (or

a portion of him) had crossed the threshold of his apartment.

Even were I to assume that was the relevant threshold - a

proposition I join Judge Rivera in doubting - the protections of

the Federal and State constitutions and the prospect of a life

behind bars should not turn on the vagaries of a prepositional

- 4 -
- 5 - No. 82

phrase. Those vagaries are amply illustrated in this case by the

People's key witness, who testified that both he and the

defendant were simultaneously standing "in the doorway" – an

implausible scenario if that witness, like the majority,

understood the phrase to mean precisely the space between the

doorjambs, and one that suggests he, like most people, understood

"in the doorway" to mean "near it", possibly in- or outside, or

some of each.

Nor does a consultation of the record, which includes the

following colloquy with that witness, whose testimony the court

credited, resolve the ambiguity:

Detective: . . . we placed handcuffs on him at the doorway.

Defense: Inside the apartment or outside the apartment?

Detective: Inside the doorway.

Defense: He had stepped out of his apartment?

The People: Judge, I'm going to object.

The Court: Counsel, rephrase it.

Defense: When you say, 'inside the doorway', inside the 

apartment or outside the apartment?

Detective: Inside the doorway.

Defense: Inside the doorway.

Detective: He was standing at the doorway. 

Defense: Okay. And the handcuffs, detective, were placed on

him when he was by the doorway?

- 5 -
- 6 - No. 82

Detective: Yes.3

Thus, contrary to the majority, I understand the Appellate

Division to have found Mr. Garvin was inside, rather than

partially outside, his apartment and thus subject to the

protections of the U.S. Constitution elaborated in Allen.4 At

the very least, there is no record evidence to support a finding

that he was fully outside when arrested.

However, because the majority treats this case as one in

which some fragment of the defendant's body exited his home

before he was arrested, I note that nothing in today's decision

precludes a lower court or a latter decision from adopting Allen

when confronted by a case in which a defendant consented to an

arrest while remaining entirely inside his home. Similarly,

because no police officer crossed the threshold or otherwise

conducted a search of Mr. Garvin's apartment, nothing in today's

decision prevents a future court from announcing a rule that

3 The arrest, furthermore, took place when the police first told

Mr. Garvin he was under arrest – several seconds before he was

handcuffed. In the words of the People's witness, "When I

knocked on the door, he answered the door this time. I looked at

him. He looked at me. I said, 'You're under arrest.' He turned

around, put his hands behind his back, and I handcuffed him." 

This version of the story further supports the suggestion that it

is fair to understand the Appellate Division's finding Mr. Garvin

was "in the doorway" to mean "just inside the doorway" rather

than "on the sill". The witness does not describe Mr. Garvin

stepping forward after opening the door, and it would be

surprisingly aggressive for any person to open a door and advance

on a trio of uniformed officers.

4 In addition to Allen's persuasive force, we have an interest in

ensuring our protections are no less than those guaranteed by the

local federal courts.

- 6 -
- 7 - No. 82

would suppress evidence seized during a consensual search after a

warrantless threshold arrest. 

II. The New York Constitution

The Court's disagreement over the present facts and their

implication, as well as the at least three-way circuit split over

how to apply Payton in similar circumstances (see Allen, 813 F3d

at 81), suggest it is time for us to consider whether the New

York Constitution provides greater clarity to police officers,

private citizens, and future litigants than the present federal

rule, which implicates defendants in a high-stakes game of inches

that they do not know they are playing. I believe that it

should. 

I would therefore go further than Allen and prohibit

purposeful warrantless arrests of suspects who are induced to

leave their homes by the actions (be they direct or furtive, and

however noncoercive) of the police. In other words, if the police

plan to arrest someone who is at home, absent exigent

circumstances, until they have an arrest warrant, they may not go

to the person's door to arrest him or cause him to leave his home

to arrest him outside of it.

As an initial matter, "we have not hesitated in the past to

interpret Article I, § 12 of the State Constitution independently

of its federal counterpart when necessary to assure that our

- 7 -
- 8 - No. 82

state's citizens are adequately protected from unreasonable

government intrusions" (People v Scott, 79 NY2d 474 [1992, Kaye,

CJ, concurring]). In case after case, "this court has

demonstrated its willingness to adopt more protective standards

under the State Constitution when doing so best promotes

'predictability and precision in judicial review of search and

seizure cases and the protection of the individual rights of our

citizens'" (People v Torres, 74 NY2d 224, 228 [1989] [quoting

People v P.J. Video, 68 NY2d 296, 508 (1986) and People v

Johnson, 66 NY2d 398, 407 (1985)]). 

One of the most significant of those cases, despite our

initial failure to anticipate the Supreme Court's holding in

Payton (see People v Payton, 45 NY2d 300 [1978]), is People v

Harris. That case held, as I would here, that "the Supreme

Court's rule does not adequately protect the search and seizure

rights of citizens of New York" and that our constitution

provided greater protections than its federal counterpart to

defendants subject to warrantless home arrests (77 NY2d 434, 437

[1991]). It also instructed that "[s]tate courts, when asked to

do so, are bound to apply their own Constitutions notwithstanding

the holdings of the United States Supreme Court" (id. [emphasis

added]), as "the failure to perform an independent analysis under

the state constitution would improperly relegate many of its

provisions to redundancy" (Scott, 79 NY2d at 496 [Kaye, CJ,

- 8 -
- 9 - No. 82

concurring]). Mr. Garvin asks us to apply ours here.5

The application of the New York Constitution to the present

case is affected by the principle of stare decisis. The majority

points to four prior cases in which this Court has held that

certain warrantless threshold arrests do not violate Payton:

People v Minley (68 NY2d 952 [1986]), People v Reynoso (2 NY3d

820 [2004]), People v McBride (14 NY3d 440 [2010]), and People v

Spencer (29 NY3d 302 [2017]). 

None of those four cases, however, addresses the question

Mr. Garvin raises. They deal, as the majority itself concedes

(majority op. at 11), only with the application of Payton and the

Fourth Amendment. Because they do not consider whether any

matters peculiar to this state warrant greater protection under

Article I, § 12, I approach that inquiry as an issue of first

5 The majority declines to address this argument on the

ground that Mr. Garvin failed to raise the lawfulness of his

arrest under the New York Constitution at the suppression hearing

(majority op. at n 8). At the suppression hearing, Mr. Garvin's

counsel expressly advised the Court that he was relying on the

Omnibus motion papers previously filed with the Court. Those

papers expressly state: "The Defendant moves for a hearing to

determine whether Defendant was improperly seized and unlawfully

detained in violation of the Defendant's constitutional rights

derived from both the United States Constitution, Fourth and

Fourteenth Amendments, New York State Constitution, Article [1],

Section 12 . . ." (emphasis added). Furthermore, Mr. Garvin

maintained at the hearing that the violation of "both his federal

and his state constitutional rights" was specifically intended to

circumvent his right to counsel. These arguments sufficed to

preserve the issue for the review he now requests. As the

majority believes the issue was not preserved, the question of

whether our constitution affords more protection in this regard

than its federal counterpart remains open.

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impression. Even were our decisions in Minley, Reynoso, McBride,

and Spencer to bear on today's issue, both "lessons of experience

and the force of better reasoning" (People v Bing, 76 NY2d 331,

338 [1990]) would compel me to abandon that line of decisions. 

As to the force of better reasoning, it is indisputable that

none of the cases cited by the majority elaborate on how to apply

Payton to threshold arrests. Minley and Reynoso are mere

memoranda, devoid of any reasoning. Minley treats an issue the

Appellate Division had concluded was "not properly preserved for

appeal"; indeed, the Appellate Division "assume[d] . . . that the

warrantless arrest was illegal under Payton" (People v Minley,

112 AD2d 712 [4th Dept 1985]). Reynoso disposes in two sentences

of disputed facts, without remanding for the Appellate Division's

determination the possibility that a detective reached across the

threshold to pull defendant out of his home (People v Reynoso,

309 AD2d 769 [2d Dept 2003]) – a scenario that seems unlikely to

comport with even a narrow reading of Payton or our application

thereof in People v Levan (62 N.Y.2d 139 [1984]; but see People v

Ashcroft, 33 AD3d 429 [1st Dept 2006] ["The police did not

violate defendant's Fourth Amendment rights when they reached 

and pulled him out as he stood in close proximity to his doorway

since, by his actions, defendant knowingly and voluntarily

presented himself for public view"]). McBride is about whether

the police created the exigent circumstances they used to justify

their entry, not threshold arrests, and occasioned both a two-

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judge dissent and a cautionary aside from the majority that

anticipated the rule I suggest today (14 NY3d at 449 [Pigott, J,

dissenting] ["[T]he real issue is 'could the police, as required

by the Fourth Amendment and legions of cases, have obtained a

warrant prior to going to defendant's apartment when they clearly

intended to effect an arrest?'"]). Spencer, as well as Mr.

Spencer's brief, treated the Payton issue in that case as a

footnote to the central contest over juror disqualification. 

Measured against the depth of analysis provided by the federal

courts, and against fresh reasoning occasioned by the lessons of

experience, the precedents on which the majority relies suggest a

nearly weightless brand of stare decisis.

As to those lessons of experience, they demonstrate that,

contrary to the majority and the Appellate Division's contention,

the current rule is not clearly and easily understood. Perhaps

because, as Supreme Court recently bemoaned, "no New York case

since Payton appears to have addressed the issue" of what

constitutes a "threshold" (People v Mendoza, 49 Misc3d 1007, 1012

[Sup Ct, NY County 2015]), the current rule has failed to protect

New York citizens from illegal searches (Kozlowski, 69 NY2d 761;

Riffas, 120 AD3d 1438; Mendoza, 49 Misc3d 1007 [finding that

police had violated the defendant's Fourth Amendment rights]; see

also Correa, 55 AD3d 1380; Reynoso, 309 AD2d 769; Anderson, 146

AD2d 638 [declining to suppress evidence gathered by police who

breached the threshold]). For the same reason, it has failed to

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safeguard the court system from constant appellate litigation

(see, e.g., People v Kozlowski, 69 NY2d 761 [1987]; People v

Spencer, 135 AD3d 608 [1st Dept 2016]; Garvin, 130 AD3d 644;

People v Riffas, 120 AD3d 1438 [2d Dept 2014]; People v Pearson,

82 AD3d 475 [1st Dept 2011]; People v Correa, 55 AD3d 1380 [4th

Dept 2008]; People v Rodriguez, 21 AD3d 1400 [4th Dept 2005];

Reynoso, 309 AD2d 769; People v Andino, 256 AD2d 153 [1st Dept

1998]; Mauceri v County of Suffolk, 234 AD2d 350 [2d Dept 1996];

People v Schiavo, 212 AD2d 816 [2d Dept 1995]; People v Francis,

209 AD2d 539 [2d Dept 1994]; People v Min Chul Shin, 200 AD2d 770

[2d Dept 1994]; People v Rosario, 179 AD2d 442 [1st Dept 1992];

People v Lewis, 172 AD2d 775 [2d Dept 1991]; People v Marzan, 161

AD2d 416 [1st Dept 1990]; People v Anderson, 146 AD2d 638 [2d

Dept 1989]; People v Brown, 144 AD2d 975 [1st Dept 1988]; People

v Nonni, 141 AD2d 862 [2d Dept 1988]). 

As this Court's first sustained consideration of the

validity of threshold arrests, today's opinion may resolve some

of that ambiguity by defining the threshold to mean only the

narrow space between the doorjambs. But in doing so, it provides

not only a uniform line to lower courts but also a better guide

to those witnesses willing to tailor their testimony to the law. 

The rule the majority upholds invites both parties – but

especially those parties better versed in the law – to engage in

unverifiable he-said, he-said contests on the stand. Even for

honest witnesses - and I assume the witnesses here were

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completely truthful - the rule presents defendants who may not

wish to testify with an unpleasant dilemma and tests the precise

spatial recall of participants in what is typically a tensionfraught situation where all parties are focused on their safety,

not architectural niceties. Moreover, a clear rule can founder

on everyday imprecisions of language, as illustrated by the

difference the majority and I have about what the Appellate

Division found here. A rule requiring police, in the absence of

exigent circumstances, to obtain a warrant before (a) going to a

home for the purpose of arresting a suspect or (b) causing that

suspect to enter or cross the threshold, offers a far brighter

line (see United States v Holland, 755 F2d 253, 259 [2d Cir 1985,

Newman, J., dissenting] ["I appreciate the majority's preference

for a 'clearly-defined boundary line' that will be readily

apparent to an officer in the field. However, that line already

exists for cases such as this: the line between arrests with a

warrant and those without a warrant"]). Although the majority

criticizes that alternative for looking to the subjective intent

of the police (majority op. at 13), it will prove easier to

verify whether the police visited a house to make an arrest or

merely to further an investigation than whether a suspect's nose

crossed the threshold (see United States v Titemore, 335 FSupp2d

502 [D Vt 2004]). The cases the majority cites discourage

investigations into whether individual officers acted in bad

faith or with an invidious purpose (Kentucky v King, 563 US 452

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[2011]; Whren v United States, 517 US 806, 814 [2001]; far from

requiring that kind of subjective analysis, a rule declaring

purposeful at-home arrests absent exigent circumstances

unreasonable searches and seizures under the New York

Constitution takes an objective view of the circumstances. The

Second Circuit had no difficulty establishing police officers in

Allen planned to arrest the defendant (813 F3d at 78 ["four

Springfield police officers went to Allen's apartment with the

pre-formed plan to arrest him" (quotations omitted)]).

The present rule is not only subject to confusion and

manipulation, but also has practical repercussions that subvert

both the ideals of the New York bill of rights and the goals of

our law enforcement officers. 

Adherence to the majority's rule "involves collision with a

prior doctrine more embracing in its scope" (People v Peque, 22

NY3d at 194). As Judge Rivera explains in her dissent, "the

safeguards guaranteed by the State's Right to Counsel Clause are

unique . . . and far more expansive than the federal counterpart"

(77 NY2d at 439). Their protection requires the "highest degree

of judicial diligence" (id.). New York police "have every reason

to violate Payton . . . because doing so enables them to

circumvent the accused's indelible right to counsel", which would

attach were an arrest warrant obtained (id. at 440). Indeed, the

evidence indicated that the police were motivated by just such

considerations in this case. Even though they had developed

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probable cause for Mr. Garvin's arrest by 2:45 pm on the day of

the arrest, they did not attempt to secure a warrant or stake out

his house. Instead, to question him in the absence of an

attorney and while his girlfriend's presence in police custody -

secured through deceitful statements by a detective - might

motivate a confession, they elected to effect a warrantless

threshold arrest. Here as in Harris, "this interplay between the

right to counsel rules established by New York law and the

State's search and seizure provisions . . . provides a compelling

reason for deviating" from the federal rule (id.). 

When the police call on a suspect's home with the intention

of making an arrest, one of several scenarios can unfold. In

most instances, that suspect will acquiesce to the police's

simple request to leave the home – an exchange that results in

peaceful arrests but operates in derogation of the right to

counsel and, in some instances, as an unwitting waiver of the

suspect's right to avoid unreasonable searches of that home (see,

e.g., Allen, 813 F3d at 79 ["Allen, who had appeared at the door

in his stocking feet, asked whether he could retrieve his shoes

and inform his 12–year–old daughter, who was upstairs in the

apartment, that he would be leaving with the officers. The

officers advised Allen that he could not return upstairs unless

they accompanied him, which they did"]; Nonni, 141 AD2d at 862

["Detective McCormack then announced from his position outside

the doorway that the defendant was under arrest. The defendant

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responded by stating, 'Let's take it off the street'. The

defendant thereupon turned and walked into the house with the

police following him"]; Rosario, 179 AD2d at 442 ["The police

officers identified themselves and arrested defendant at the

doorway of his apartment. Defendant, who wore nothing above the

waist, was told to get a shirt. The police officers followed

defendant into his apartment as he went to retrieve his shirt"]). 

In other instances, law enforcement officers will resort to

a variety of ruses to achieve the same result. The lower courts

have upheld arrests subsequent to noncoercive subterfuges that,

although validated by this Court's memoranda upholding Reynoso

and People v Roe (73 NY2d 1004 [1989]), hardly instill a

community's trust in the police (see, e.g., People v Robinson, 8

AD3d 131 [1st Dept 2004] [police fabricated a noise complaint];

People v Hollings [Sup Ct Bronx County 2004] [police asked the

defendant to help solve a fictitious crime]; Reynoso, 309 AD2d

769 [police had defendant's mother wake him at midnight because a

fictitious friend was suffering an undisclosed emergency]; People

v Williams, 222 AD2d 721 [2d Dept 1995] [police said that there

had been an accident involving defendant's vehicle]; People v

Gutkaiss, 206 AD2d 628 [3d Dept 1994] [police had defendant's

relative call about construction work]; People v Coppin, 202 AD2d

279 [1st Dept 1994] [police officer said she might go out with

defendant]). They have also derailed what should have been clean

convictions because the police used impermissibly coercive means

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(see, e.g., People v Fernandez, 158 Misc 2d 165 [Sup Ct, NY

County 1993] [police impersonated a parole officer conducting a

residence check]; see also People v Roe, 136 AD2d 140 [3d Dept

1988] ["if police had falsely informed defendant that there was a

gas leak requiring his evacuation, his departure from his home

would be no more voluntary than it would be had the police

surrounded the premises and ordered him out with guns drawn"]).

In a final category of instances, the suspect will respond

to the police's arrival either by refusing to answer or by

opening and then attempting to close the door – the other horn of

the "unfair dilemma" confronting suspects subject to warrantless

home arrests (United States v Reed, 572 F2d 412, 423 n9 [2d Cir

1978]). Whereas officers equipped with an arrest warrant would

have more authority in the eyes of their suspect and the clear

right to enter the house if the situation required, the

majority's rule creates unfortunate uncertainties for all parties

to the encounter. On some occasions, that uncertainty tempts the

officers into compromising their case by effecting an unlawful

arrest (see, e.g., Riffas, 120 AD3d at 1438-1439 [when defendant,

who had never crossed the threshold of his apartment, attempted

to shut the door, the police violated his Payton rights by

pushing the door open, pulling the defendant into the public

hallway, and arresting him]). On others, the mounting

frustration of officers trapped outside the threshold presents a

danger to the suspect, bystanders, and the arresting officers

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(see, e.g., McBride, 14 NY3d at 444 [police, frustrated by

defendant's refusal to open the door, climbed his fire escape and

knocked, guns drawn, on the window, sending the defendant's guest

crying to the door]). This scenario also presents a danger to

the People's case, as the police, who cannot enter the home

without a warrant and "cannot by their own conduct create an

appearance of exigency" (Levan, 62 NY2d at 146), have provided

notice to a suspect who now has an opportunity to flee, destroy

physical evidence inside the home, or even arm himself in

anticipation of resisting arrest. 

None of these scenarios is desirable. They, and a variety

of other questions occasioned by the current rule (see fn 1), can

be avoided by creating a warrant requirement for the purposeful

at-home arrests of suspects.6 That requirement would protect the

rights of citizens from abuse, our law enforcement officers from

the threat of escalating circumstances, and the People from

having a carefully planned case upended by credible testimony

that a defendant had been securely inside his threshold or an

officer had been, even inadvertently, out of bounds. It would

6 The rule would not prevent the police from staking out a home

and conducting a public arrest based on probable cause after a

suspect exits that home without the state's prompting, although

officers not wishing to wait could instead obtain an arrest

warrant. It also would not prevent the police from effecting the

unplanned arrest of a person whose home they approached for the

purposes of making an inquiry (cf. King, 563 US 452; Allen, 813

F3d at 84-85 [discussing Titemore, 427 F3d 251).

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not, because of the exigent circumstances exception and the

relative ease of securing an arrest warrant when probable cause

exists, unduly hamper the important work of our police forces. 

Although the People suggest they can meet their burden of

demonstrating exigent circumstances justified the warrantless

arrest in this case, there is no evidence to suggest the police

faced an "urgent need" to apprehend their suspect (McBride, 14

NY3d at 446 [quoting United States v Martinez-Gonzales, 686 F2d

93, 100 (2d Cir 1982)]). Any speculative danger that Mr. Garvin

might commit another robbery, use a weapon, or attempt to flee

could have been prevented by the simple expedient of stationing

an officer outside his home while an arrest warrant was obtained. 

Any risk that he would realize the game was up and destroy the

evidence was occasioned by the police and their scheme to bring

Mr. Garvin's girlfriend and her daughter to the station as a form

of leverage over the defendant. There is no record support for

the conclusion that the police were faced with an exigency other

than that which they created. To conclude otherwise would be to

allow the exception to swallow the proposed rule. Applying that

rule to the present circumstances, Mr. Garvin's arrest violated

the state constitution. 

As a result, I would reverse the order of the Appellate

Division and remit the case to that court to determine whether

the People have established that Mr. Garvin's statement, and the

money recovered at the precinct, were attenuated from the

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violation or that the hearing court's refusal to suppress them

was harmless beyond a reasonable doubt. 

* * * * * * * * * * * * * * * * *

Order affirmed. Opinion by Judge Stein. Chief Judge DiFiore and

Judges Garcia and Feinman concur. Judge Fahey dissents in part

in an opinion. Judge Rivera dissents in an opinion in which

Judge Wilson concurs, Judge Wilson in a separate dissenting

opinion.

Decided October 24, 2017

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