| People v Forbes |
| 2010 NY Slip Op 02349 [71 AD3d 1519] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Robert A.Forbes, Jr., Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Patrick H. Fierro of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Joseph D. Valentino, J.),rendered November 14, 2006. The judgment convicted defendant, upon a jury verdict, of robberyin the first degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law,that part of the motion seeking to suppress tangible property is granted and a new trial is granted.
Memorandum: On appeal from a judgment convicting him after a jury trial of robbery in thefirst degree (Penal Law § 160.15 [4]), defendant contends that Supreme Court erred indenying that part of his omnibus motion seeking to suppress tangible property seized by thepolice following their warrantless entry into his home. We agree. It is well settled that "policeofficers need either a warrant or probable cause plus exigent circumstances in order to make alawful entry into a home" (Kirk v Louisiana, 536 US 635, 638 [2002]; see Payton vNew York, 445 US 573, 589-590 [1980]). Where, as here, the People contend that a suspectgave his or her consent to the police to enter the suspect's home, "the burden of proof restsheavily upon the People to establish the voluntariness of that waiver of a constitutional right"(People v Whitehurst, 25 NY2d 389, 391 [1969]). We agree with defendant that thePeople failed to meet that burden in this case. The record of the suppression hearing establishesthat two Rochester police officers went to defendant's last known address for the purpose oftaking defendant into custody for questioning. Upon arriving there, the officers asked defendantfor identification and then immediately entered his home when he turned to procure hisidentification papers. Consequently, we conclude that defendant did not voluntarily consent tothe officers' entry into his home (see People v Richardson, 229 AD2d 316 [1996],appeal dismissed 89 NY2d 933 [1997]; see generally People v Gonzalez, 39NY2d 122, 128 [1976]). We note in addition that the People did not contend at the suppressionhearing that exigent circumstances existed to justify the entry or that the tangible property wasnot the fruit of the unlawful entry, nor indeed do they raise those contentions on appeal. We thusagree with defendant that the court erred in denying that part of his omnibus motion seeking tosuppress tangible property.
In view of our determination, we do not address defendant's remaining contentions.Present—Smith, J.P., Centra, Lindley, Sconiers and Pine, JJ.