| People v McBride |
| 2009 NY Slip Op 00576 [59 AD3d 151] |
| February 3, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Norman McBride, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Dana Poole of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J., at suppression hearing;Daniel P. FitzGerald, J., at plea and sentence), rendered March 31, 2005, convicting defendant ofattempted robbery in the second degree, and sentencing him, as a persistent violent felonyoffender, to a term of 14 years to life, unanimously affirmed.
The court properly denied defendant's motion to suppress statements and physical evidenceas fruits of a warrantless home arrest that allegedly violated Payton v New York (445 US573 [1980]). Initially, we find no basis to disturb the court's credibility determinations, includingits rejection of those portions of the testimony of a defense witness that did not correspond to thepolice testimony.
It is undisputed that the police had probable cause to arrest defendant for an armed robbery.When the police went to defendant's residence at about 11:00 p.m., after he had been identifiedas a participant in a restaurant robbery, they knocked, heard noise within, but received noresponse. After several minutes of knocking, one officer called the apartment on the lobbyintercom, and a male voice answered. Meanwhile, other detectives, concerned that defendantmight try to flee, climbed the fire escape, and observed defendant lying face down on a bedroomfloor. When the officers asked defendant, again, to open the door, the detective at the fire escapewindow saw someone else run by. Detectives at the apartment's door were greeted by adistraught and hyperventilating young woman who was unable to respond to their inquiries as towhat was going on and whether she was all right. As a result, the detectives entered theapartment to ensure that no one was in danger within, and immediately arrested defendant.
We conclude that this warrantless entry was justified by exigent circumstances, including, inparticular, the violent nature of the underlying offense, the knowledge of the police thatdefendant was in the apartment and their reasonable belief that he was armed, and the behaviorand demeanor of the woman that suggested a dangerous and volatile situation (see People vPollard, 304 AD2d 476 [2003], lv denied 100 NY2d 585 [2003]). We also rejectdefendant's argument that the police created any exigency. The evidence properly credited by thehearing court did not show that the police did anything to frighten the woman out of theapartment. On [*2]the contrary, the police had every reason tobelieve she was reacting to some actual or threatened conduct by defendant, who the police knewto be a parolee wanted for armed robbery. We note that at the suppression hearing defendantmade no argument concerning the seizure of the hat, gloves and coat, and thus the lawfulness ofthe seizure is not properly before us.
Given our conclusion that the warrantless entry into the apartment was justified by exigentcircumstances, we have no occasion to review the hearing court's finding that defendant'sstatements at the precinct were sufficiently attenuated from any unlawful entry.
The hearing court properly denied defendant's motion to suppress identification testimony.The lineup was not unduly suggestive (see People v Chipp, 75 NY2d 327, 336 [1990],cert denied 498 US 833 [1990]). The participants were reasonably similar to each otherand defendant did not stand out. The lineup was not rendered suggestive by the fact thatdefendant wore a gray sweatshirt in the lineup, which was part of the clothing descriptionprovided by one of the witnesses to the robbery. This unremarkable item of clothing would notreasonably be construed to have drawn attention to defendant, especially since some lineupparticipants wore sweatshirts of other colors, since the sweatshirt was only a part of a detailedclothing description, and since the passage of several days between the robbery and the lineupreduced the significance of any similarity between the attire of a lineup participant and that ofthe described suspect (see People v Santos, 250 AD2d 413 [1998], lv denied 92NY2d 905 [1998], cert denied 525 US 1076 [1999]). Concur—Lippman, P.J.,Mazzarelli, Buckley, McGuire and DeGrasse, JJ.