Following up on the  right to left alone on the street comes this far more egregious case, involving an intrusion into the sanctity of the home.  Thanks to reader Kathleen for bringing this Fourth Department decision in People v. Alfonzo Perez, 

Now the Fourth Department isn’t known for fawning over defendants or being all that worried about silly liberal stuff like constitutional rights, at least not when it comes to cops taking down bad guys (or doing pretty much anything else, for that matter).  But it looks like they have finally drawn a line that even cops can’t cross.

The conviction arises out of an altercation with police officers who were investigating the origin of loud music emanating from defendant’s apartment building. When the first two officers arrived at defendant’s apartment, defendant opened the door a crack and stated that he had just gotten out of the shower and was not wearing any clothes.

Let’s stop here for a moment and consider a couple of things.  First, the court characterizes this situation as an “altercation”.  That’s an interesting choice of words, since the defendant is inside his own apartment and the cops go to his door.  While there may have been a struggle at the end of the arrest, that doesn’t serve to change the initial basis for the police action.  Notably missing is any finding that when the cops arrive at his apartment door, they hear loud music.  No music?  Then what are they doing there?  And you probably thought I was going to talk about his being naked at the door, didn’t you?

Defendant initially refused to give his name in response to repeated inquiries from one of the officers, and he then gave a name and date of birth for which a record search revealed no matches. When the officers advised defendant that his neighbor had given them defendant’s name, defendant initially replied that he did not need to give his name but soon thereafter provided his correct name and date of birth. When one of the officers informed defendant that he was under arrest for criminal impersonation, disorderly conduct and obstructing governmental administration, defendant attempted to shut his door. A second officer grabbed defendant and pulled him from his apartment.

This part of the findings has more things wrong than any paragraph in a decision I’ve read in a long time.  But the one that strikes me as most amazing is that they barred the defendant from shutting his door and pulled the defendant out of his apartment. 

To the exten that the defendant affirmatively “did” something wrong so as to annoy the cops sufficiently for them to decide to make your evening unpleasant, it was the heinous act of giving them the wrong name.  Put aside the fact that Perez had no obligation to give them any name, and consider whether this was reason enough to engender such ire in the police.  Not that pissing off cops, in itself, is a crime, but for those inclined to believe that anyone who does something evil deserves whatever consequences follow, does giving the cops a false name justify this arrest?

Homes have a special place in criminal law.  There are certain lines that can’t be crossed, and one is the threshold to the home.  If Perez is within his home, and the cops have no warrant, that’s where Perez stays.  Absent certain exigent circumstances, pulling a person out of his home so that he can be arrested just isn’t permitted.

While the appellate court reversed the defendant’s conviction for resisting, criminal impersonation, obstructing government administration and assault (which comes from a struggle after Perez was pulled out of his home), this case is hardly a shining example of the law working well.

Bear in mind that this case doesn’t reach the appellate courts until after the defendant has been convicted.  That means that a case that should have been tossed out at arraignment made it all the through the system, and to appeal, before anybody seemed to realize just how many things went wrong.  

Adding insult to injury, it appears that the defense lawyer blew it, as appears from the failure to preserve the issues for appeal, reached only by the court’s willingness to consider issues under its extended “interest of justice” jurisdiction, rarely exercised anymore.  That means that the court believed this case to so ridiculously outrageous that it wasn’t going to allow it to stand.

While the 4th Department decision doesn’t discuss it, it would appear that the wealth of issues presented here were simply neglected or ignored by defense counsel.  While that doesn’t excuse the lower court judge from dealing with glaringly unlawful conduct by cops, or convicting someone for acts that aren’t unlawful, it does make it somewhat more comprehensible when defense counsel fails to do his job.

While Perez should be happy that the half-dozen charges against him were dismissed, the fact that it took an appellate court to end the nightmare that started with a knock on his apartment door, with him inside his home, demonstrates the huge gap between the rhetoric of the right to be left alone and the reality of what happens when a police officer decides that your going to do what he says.

Next time, he should just check his peep hole first and leave the door closed and locked.