| People v Musto |
| 2013 NY Slip Op 03880 [106 AD3d 1380] |
| May 30, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JohnMusto, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Albany County(Herrick, J.), rendered June 6, 2012, upon a verdict convicting defendant of the crimes ofcriminal possession of marihuana in the second degree and growing of the plant knownas cannabis by unlicensed persons.
Defendant was charged with criminal possession of a controlled substance in thefifth degree, criminal possession of marihuana in the second degree and growing of theplant known as cannabis by unlicensed persons after police discovered approximatelynine pounds of marihuana either growing or drying in his apartment. Defendant moved tosuppress the marihuana and his statements to police. County Court denied the motion.Following a trial, a jury found him guilty of criminal possession of marihuana in thesecond degree and growing of the plant known as cannabis by unlicensed persons. Thecourt imposed an aggregate prison term of 1½ years followed by one year ofpostrelease supervision. Defendant appeals, challenging only the denial of hissuppression motion.
County Court did not err in finding that the police were justified in enteringdefendant's apartment under the emergency exception to the warrant requirement. Factualfindings of the suppression court are accorded great deference and we will not disturbthem unless they are clearly erroneous (see People v Davis, 58 AD3d 896, 898[2009]; People v Johnson, 17 AD3d [*2]932, 933[2005], lv denied 5 NY3d 790 [2005]). Although law enforcement officers maynot generally enter a home without a properly issued warrant (see People v Thatcher, 9 AD3d682, 684 [2004]; US Const 4th, 14th Amends; NY Const, art I, § 12), "'officers may enter a home without a warrant to render emergency assistance to an injuredoccupant or to protect an occupant from imminent injury' " (Colao v Mills, 39 AD3d1048, 1051 [2007], quoting Brigham City v Stuart, 547 US 398, 404[2006]). The Court of Appeals has outlined three elements to determine whether exigentcircumstances exist to justify entry without a warrant: "(1) The police must havereasonable grounds to believe that there is an emergency at hand and an immediate needfor their assistance for the protection of life or property. (2) The search must not beprimarily motivated by intent to arrest and seize evidence. (3) There must be somereasonable basis, approximating probable cause, to associate the emergency with the areaor place to be searched" (People v Mitchell, 39 NY2d 173, 177-178 [1976],cert denied 426 US 953 [1976]; accord People v Dallas, 8 NY3d 890, 891 [2007]). TheUnited States Supreme Court has since eliminated the intent element for 4th Amendmentpurposes (see Brigham City v Stuart, 547 US at 404-405; see also People v Rossi, 99AD3d 947, 949-950 [2012]; Colao v Mills, 39 AD3d at 1051; but cf.People v Dallas, 8 NY3d at 891 [noting that the Court of Appeals had no occasionthere to determine whether Brigham City required modification ofMitchell]).[FN*]
Testimony at the suppression hearing established that, in the early morning hours,police received a call that a burglary was in progress. They responded to a house andtalked to the female victim, who lived on the first floor and had been injured by theburglars. She informed a sergeant that she saw the three burglars exit through a sidedoor. The sergeant observed that the side door, which was open, led outside, but also ledto a stairway to the second floor. Upon further questioning, the victim informed thesergeant that a couple lived in the second-floor apartment, but they were never home atthat time of night, were meticulous about locking their doors and had a large dog thatwould prevent anyone from entering the second-floor apartment. The sergeant checkedthe stairways and doors but found nothing amiss. Police knocked on the doors and hearda large dog roaming around but no one answered. The sergeant therefore found no reasonto forcibly enter the upstairs apartment.
While the victim was at the hospital, the police inquired of her about a car in thedriveway. She indicated that it belonged to the upstairs tenants, and that if the car wasthere, then the tenants were most likely at home. Upon further questioning, she alsostated that the tenants crated their dog when they went out, so if the dog was roamingloose in the apartment then the tenants were probably there. Considering this newinformation indicating that the tenants were in the apartment, yet had not answered thedoor earlier, the sergeant determined that a forced entry was necessary to check on thesafety of the tenants because the burglars could have fled up to the second floor and beeninside. After the police knocked repeatedly and announced that they were going toforcibly enter, defendant opened the door. When asked his name, whether he lived thereand if anyone else was inside, defendant said nothing. An officer handcuffed him andplaced him in a police car, while other officers entered and conducted a sweep of theapartment. No other individuals were found inside, but the police did observe numerousplants and drying marihuana.[*3]
Defendant contends that no emergency existedbecause the sergeant had earlier determined that nothing upstairs was amiss and noforcible entry was necessary, plus several hours passed between the arrival of police andthe entry into the apartment. Despite the lapse of time, it was reasonable for the police tobelieve that an emergency was at hand when they received new information that thetenants were present but had not answered the door (compare People v Molnar,98 NY2d 328, 334-335 [2002]). The earlier information from the victim led the police tobelieve that the tenants were not home at that time, but the later information correctedthat belief. Upon opening the door, defendant did not respond to questioning regardingwhether he lived there or other people were present, leading police—who did notknow if defendant was a resident or a burglary suspect—to seize him and sweepthe apartment to determine whether any suspects or other victims were inside. Theemergency was limited to the second-floor apartment, where the tenants lived and theburglars could have fled by the side door from the first-floor apartment. The hearingtestimony "provided the necessary objective, empirical facts to believe that an emergencywas at hand" (People v Greenleaf, 222 AD2d 838, 840 [1995], lv denied87 NY2d 973 [1996]). As County Court's factual findings are supported by the record,the court did not err in finding exigent circumstances that justified the warrantless entry(see People v Molnar, 98 NY2d at 334-335; People v Thatcher, 9 AD3dat 684).
Rose, J.P., Stein and Spain, JJ., concur. Ordered that the judgment is affirmed, andmatter remitted to the County Court of Albany County for further proceedings pursuantto CPL 460.50 (5).
Footnote *: While the intent elementmay still apply to an argument based on the NY Constitution (see People v Rossi,99 AD3d at 950), defendant couched his argument as a 4th Amendment challenge.