| People v Lubbe |
| 2009 NY Slip Op 00035 [58 AD3d 426] |
| January 6, 2009 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JohnLubbe, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Susan Axelrod of counsel), forrespondent.
Judgment, Supreme Court, New York County (Arlene R. Silverman, J., at hearing; Daniel P.FitzGerald, J., at plea and sentence), rendered November 2, 2006, convicting defendant ofpossessing a sexual performance by a child, and sentencing him to a conditional discharge,unanimously affirmed. The matter is remitted to Supreme Court, New York County, for furtherproceedings pursuant to CPL 460.50 (5) relating to the stay of execution of judgment.
All of defendant's suppression arguments are unpreserved (see e.g. People vMartin, 50 NY2d 1029 [1980]), and we decline to review them in the interest of justice. Asan alternative holding, we also reject them on the merits. The court properly denied defendant'smotion to suppress the evidence seized from his computer. After learning from defendant'scompanion that she had discovered child pornography on his computer, the police were entitledto remain in defendant's apartment while they obtained a warrant, even though he withdrew hisconsent to their presence and asked them to leave (see People v Arnau, 58 NY2d 27,36-37 [1982]; Segura v United States, 468 US 796, 810 [1984]). The ensuing warrantwas based on probable cause (see People v Bigelow, 66 NY2d 417, 423 [1985];Spinelli v United States, 393 US 410 [1969]; Aguilar v Texas, 378 US 108[1964]), and was sufficiently specific to satisfy constitutional requirements.Concur—Saxe, J.P., Nardelli, Buckley, Moskowitz and Renwick, JJ.