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


                              - 1 -
                               - 2 -                             No. 82

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.

                               - 2 -
                               - 3 -                          No. 82

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


                               - 3 -
                                - 4 -                         No. 82

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.

                                - 4 -
                               - 5 -                           No. 82

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


                               - 5 -
                               - 6 -                          No. 82

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


                               - 6 -
                               - 7 -                          No. 82

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]).

                               - 7 -
                                - 8 -                         No. 82

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

                                - 8 -
                              - 9 -                           No. 82

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

                              - 9 -
                              - 10 -                        No. 82

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.

                              - 10 -
                              - 11 -                          No. 82

           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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                              - 12 -                         No. 82

          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,"


                              - 12 -
                              - 13 -                          No. 82

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

                              - 13 -
                             - 14 -                           No. 82

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.

                             - 14 -
                             - 15 -                           No. 82

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


                             - 15 -
                              - 16 -                          No. 82

[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


                              - 16 -
                               - 17 -                           No. 82

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

                               - 17 -
                              - 18 -                          No. 82

          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.

                              - 18 -
                              - 19 -                        No. 82

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 two-
family 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

                              - 19 -
                             - 20 -                           No. 82

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


                               - 1 -
                                - 2 -                         No. 82

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


                                - 2 -
                                - 3 -                         No. 82

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


                                - 3 -
                               - 4 -                          No. 82

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]).


                               - 4 -
                               - 5 -                          No. 82

           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


                               - 5 -
                                - 6 -                          No. 82

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,


                                - 6 -
                                 - 7 -                        No. 82

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


                                 - 7 -
                              - 8 -                           No. 82

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


                              - 8 -
                              - 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


                              - 9 -
                              - 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]


                              - 10 -
                              - 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


                              - 11 -
                             - 12 -                           No. 82

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


                             - 12 -
                             - 13 -                           No. 82

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 [Abdus-
Salaam, 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]


                             - 13 -
                              - 14 -                            No. 82

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


                              - 14 -
                             - 15 -                          No. 82

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


                               - 1 -
                               - 2 -                          No. 82

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 two-
family 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


                               - 2 -
                               - 3 -                          No. 82

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.

                               - 3 -
                                 - 4 -                         No. 82

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 two-
family 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.


                                 - 4 -
                               - 5 -                           No. 82

           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


                               - 5 -
                               - 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 two-
family 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


                               - 6 -
                               - 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 two-
family house should be treated any differently from that of a
resident living in a single-family house.   Nor did they establish


                               - 7 -
                               - 8 -                            No. 82

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


                               - 8 -
                               - 9 -                          No. 82

living space than a tenant in a large apartment complex or multi-
unit 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, multi-
unit 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


                               - 14 -
                              - 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,


                               - 19 -
                             - 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.


                                - 9 -
                               - 10 -                         No. 82

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-


                               - 10 -
                              - 11 -                             No. 82

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


                              - 11 -
                             - 12 -                         No. 82

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


                             - 12 -
                              - 13 -                          No. 82

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 tension-
fraught 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


                              - 13 -
                                - 14 -                        No. 82

[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


                                - 14 -
                              - 15 -                           No. 82

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


                              - 15 -
                              - 16 -                          No. 82

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


                              - 16 -
                                - 17 -                        No. 82

(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


                                - 17 -
                                - 18 -                        No. 82

(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).



                                - 18 -
                                - 19 -                        No. 82

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


                                - 19 -
                                - 20 -                           No. 82

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




                                - 20 -
