| People v Paige |
| 2010 NY Slip Op 07629 [77 AD3d 1193] |
| October 28, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Tiray M.Paige, Appellant. |
—[*1] Derek P. Champagne, District Attorney, Malone (Young I. Choi of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Franklin County (Main, Jr., J.),rendered August 20, 2007, upon a verdict convicting defendant of the crimes of criminalpossession of a controlled substance in the third degree and obstructing governmentaladministration in the second degree.
When three State Troopers seeking to execute an arrest warrant for Kimberly Laroe knockedon the door of her residence, defendant refused to let them in. The troopers then kicked the dooropen and arrested defendant for obstructing governmental administration in the second degree.Defendant was also charged with criminal possession of a controlled substance in the thirddegree after the troopers found a significant amount of what proved to be cocaine in thebedroom. After a jury trial, defendant was convicted of both crimes and sentenced as a secondfelony offender to 10 years in prison for criminal possession of a controlled substance in the thirddegree and a concurrent term of one year of incarceration for obstructing governmentaladministration in the second degree. Defendant now appeals, and we affirm.
Defendant does not challenge the legitimacy of the arrest warrant, allowing us to presumethat it was based on probable cause. Instead, he argues that entry was unlawful and the evidenceseized from the bedroom should have been suppressed because the troopers failed to properlyannounce their authority and did not have a reasonable basis for the belief that Laroe [*2]was in her residence at the time. "We start with the proposition that'an arrest warrant founded on probable cause implicitly carries with it the limited authority toenter a dwelling in which the suspect lives where there is reason to believe the suspect is within' "(People v Murray, 267 AD2d 492, 494 [1999], lv denied 94 NY2d 923 [2000],quoting Payton v New York, 445 US 573, 603 [1980]; see CPL 120.80 [4]; People v Gerecke, 34 AD3d 1260,1261 [2006], lv denied 7 NY3d 925 [2006]). Prior to entering, notice of the authority andpurpose for entry must be given (see CPL 120.80 [4]). If there is a reasonable belief thatthe suspect is present within the residence and admittance is not allowed after the required noticeis given, forcible entry is permitted (see CPL 120.80 [4], [5]). The reasonable beliefstandard is less stringent than the probable cause standard, it is based on an assessment of thetotality of circumstances and an officer's belief, if reasonable, need not be correct (see UnitedStates v Lovelock, 170 F3d 339, 343-344 [1999], cert denied 528 US 853 [1999];United States v Lauter, 57 F3d 212, 215 [1995]).
Here, there was testimony that the troopers knocked on the door of Laroe's residence atapproximately 8:45 a.m. and identified themselves to defendant as State Police and as having anarrest warrant for Laroe. Defendant opened the door partway and, in response to State PoliceInvestigator William Bronner's questions, confirmed that it was Laroe's residence. Defendant toldBronner that Laroe was not there and that she had gone to the City of Plattsburgh, ClintonCounty with her mother, but he was not sure where Laroe was. Defendant was only able toidentify the mother as Victoria and could not identify the type of vehicle the mother drove.Defendant also told Bronner that Laroe did not have a vehicle. While being asked questions,defendant looked back over his shoulder into the apartment. Bronner twice told defendant that hebelieved Laroe was in the apartment, that they needed to execute the warrant and that defendantfaced arrest if he did not allow them into the residence. Instead of again denying that Laroe wasin the apartment, defendant twice responded that he would not let the troopers in. As Bronnerthen began to turn to go to his vehicle and get the warrant, defendant slammed the door. Givendefendant's inability to tell the troopers where Laroe was, his confirmation that it was herresidence and his act of looking back over his shoulder into the apartment, Bronner believed thatLaroe was in the residence and that defendant slammed the door to prevent the troopers fromexecuting the warrant. Finding the door locked, the troopers then kicked it open, entered theapartment and placed defendant—who was headed toward the bedroom—incustody. Giving due deference to County Court's credibility determinations (see People vProchilo, 41 NY2d 759, 761 [1977]; People v Harper, 73 AD3d 1389, 1389 [2010]), we conclude thatthe evidence supports its finding that Bronner's belief was reasonable, the entry into the residencewas lawful and the motion to suppress the evidence found in the apartment was properly denied(see People v Barnhill, 34 AD3d933, 934 [2006], lv denied 8 NY3d 843 [2007]; People v Ebron, 275 AD2d490, 491 [2000], lv denied 95 NY2d 934 [2000]; People v Harrell, 208 AD2d647 [1994], lv denied 85 NY2d 862 [1995]).
Defendant also challenges the legal sufficiency and weight of the evidence concerning bothcharges. At the close of the People's case, however, defendant moved to dismiss the possessioncharge alone. Thus, his claim that the evidence was not legally sufficient to sustain theobstruction charge was not preserved for appellate review (see People v Finger, 95 NY2d894, 895 [2000]; see generally People v Gray, 86 NY2d 10, 19 [1995]). Nevertheless, "'we necessarily review the evidence adduced as to each of the elements of the crimes in thecontext of our review of defendant's challenge regarding the weight of the evidence' " (People v Newkirk, 75 AD3d 853,855 [2010], quoting People vCaston, 60 AD3d 1147, 1148-1149 [2009]; see People v Danielson, 9 NY3d 342, 348-349 [2007]). Upon ourreview of the evidence in a neutral light, [*3]weighing the relativeprobative force of the proof and according due deference to the jury's credibility determinations,we find that, although a different verdict would not have been unreasonable, the jury's conclusionthat defendant intentionally interfered with the performance of an official function is not againstthe weight of the evidence (see Penal Law § 195.05; People v Baltes, 75 AD3d 656,659 [2010]; People v Tarver, 188 AD2d 938 [1992], lv denied 81 NY2d 893[1993]).
With respect to the charge of criminal possession of a controlled substance in the thirddegree, the People were required to establish that defendant knowingly and unlawfully possessedmore than one-half ounce of cocaine (see Penal Law § 220.16 [12]; § 220.00[7]; Public Health Law § 3306 [schedule II] [b] [4]). Having pursued a theory ofconstructive possession, the People were required to show that defendant exercised dominion andcontrol over the place where the cocaine was found (see Penal Law § 10.00 [8];People v Manini, 79 NY2d 561, 573 [1992]; People v Sawyer, 23 AD3d 845, 846 [2005], lv denied 6NY3d 852 [2006]). The evidence at trial established that after securing defendant in custody, thetroopers searched the bedroom for Laroe and discovered, among other things, a clear plasticbaggie containing what was later determined to be cocaine weighing 2.8 ounces in plain view ona nightstand. There was also evidence that defendant appeared to have recently woken up, he hadbeen sleeping in the bed next to the nightstand, and pants containing defendant's identificationwere found on a suitcase located next to the nightstand. Viewing this direct evidence in a lightmost favorable to the People, we conclude that it was legally sufficient to establish defendant'sdominion and control over the cocaine (see People v Young, 48 AD3d 901, 902-903 [2008]; People v Arrington, 31 AD3d 801,803 [2006], lv denied 7 NY3d 865 [2006]; People v Elhadi, 304 AD2d 982, 983[2003], lv denied 100 NY2d 580 [2003]). Upon our review of the evidence in a neutrallight and giving deference to the jury's opportunity to resolve issues of credibility, we alsoconclude that the conviction is not against the weight of the evidence (see People v Vargas, 72 AD3d1114, 1118-1119 [2010], lv denied 15 NY3d 758 [2010]; People v Echavarria, 53 AD3d859, 862 [2008], lv denied 11 NY3d 832 [2008]; People v Tarver, 292 AD2d110, 114 [2002], lv denied 98 NY2d 702 [2002]).
Defendant's contention that he was entitled to a circumstantial evidence charge is notpreserved for review, as he did not request such a charge at trial (see People v Hampton, 64 AD3d872, 877-878 [2009], lv denied 13 NY3d 796 [2009]; People v Sawyer, 23AD3d at 847; People v Layman, 284 AD2d 558, 559 [2001], lv denied 96 NY2d903 [2001]). Finally, in light of the large amount of cocaine involved, the scale and currencyfound with it, and defendant's previous felony conviction resulting in incarceration, we find noabuse of discretion or extraordinary circumstances warranting a reduction of the sentence (see People v Manley, 70 AD3d1125, 1125 [2010]; People vPatchen, 46 AD3d 1112, 1114-1115 [2007], lv denied 10 NY3d 814 [2008]).
Kavanagh and Egan Jr., JJ., concur.
McCarthy, J. (dissenting). The Fourth Amendment to the US Constitution provides citizenswith protection from unreasonable searches by the government. Both it and the NY Constitutionstate that "[t]he right of the people to be secure in their persons, houses, papers and effects,against unreasonable searches and seizures, shall not be violated" (NY Const, art I, § 12;US Const 4th Amend). [*4]Consistent therewith, police officersmay only execute an arrest warrant in a suspect's residence if they have a reasonable belief thatthe suspect is present therein (see CPL 120.80 [4]). Because "physical entry of the homeis the chief evil against which the wording of the Fourth Amendment is directed" (UnitedStates v United States Dist. Court for Eastern Dist. of Mich., 407 US 297, 313 [1972]), "thelaw requires some modicum of concrete, believable information of recent vintage, pointing to thesuspect's presence at the time his [or her] home is searched. To accept a lesser standard wouldinvite the arresting officer's entry into the home at his [or her] own convenience so long as he [orshe] holds the warrant. That alternative is legally and historically unacceptable" (People vCabral, 147 Misc 2d 1000, 1007-1008 [1990]; cf. People v Madden, 58 AD3d 1023,1026-1027 [2009, Kane, J., concurring]). The majority has, unfortunately, approved of thatpatently unacceptable—and constitutionally infirm—alternative, requiring us todissent.
Defendant was arrested based upon the fruits of a search by police officers after they enteredKimberly Laroe's apartment without a search warrant or consent. Although they had obtained anarrest warrant for Laroe, an arrest warrant only authorized the officers to enter her residence ifthey had a reasonable belief that she was present (see CPL 120.80 [4]; see also Paytonv New York, 445 US 573, 603 [1980]). Even if we fully accept the testimony of State PoliceInvestigator William Bronner, which County Court deemed credible, the evidence at thesuppression hearing wholly failed to establish the reasonableness of Bronner's belief that Laroewas present in the apartment. Defendant's suppression motion should, therefore, have beengranted, requiring dismissal of the indictment.
On the morning of March 20, 2006, Bronner, accompanied by two other State Troopers,knocked on the door of Laroe's apartment and announced that they were with the State Police.Defendant, who appeared as if he had just woken up, opened the door dressed only in underwearand a t-shirt. In response to questions, he provided his name and responded that Laroe was nothome at the time, although she did live at that residence. Bronner again asked if Laroe was home,and defendant again replied that she was not. When asked if he knew where Laroe was,defendant indicated that she had gone to the City of Plattsburgh, Clinton County with her mother,"but he wasn't sure exactly where." Defendant stated that he was not sure what kind of car Laroe'smother drove. When asked who Laroe's mother was, he responded with the first name Victoria.Bronner was not asked if he followed up on either of those responses for more specificinformation, such as the color or general description of the mother's vehicle or whether defendantknew the mother's last name. Defendant informed Bronner that he was staying at the apartment.He also responded that Laroe was renting the place from a friend. According to Bronner, at onepoint during this conversation, which lasted a couple of minutes, defendant looked over hisshoulder toward the inside of the apartment. When Bronner stated that he believed Laroe wasinside the apartment and that the troopers needed to execute the arrest warrant, defendantindicated that he could not let them do so. Bronner then told defendant that he could get introuble or be arrested for not allowing them to execute the warrant, leading defendant to onceagain respond that he could not let them into the residence. As Bronner was then turning awayfrom the door, he testified that he heard the door slam. He tried to open the door, but found itlocked. At that point, he decided that Laroe was inside the apartment and kicked the door in.Upon searching the apartment, the troopers discovered that Laroe was indeed not present therein,but they did discover cocaine.
Bronner testified that defendant responded to all of his questions, including acknowledgingthat Laroe was his girlfriend and that she lived at that residence. While the door was not wideopen, it was open enough for the troopers to see defendant; this was [*5]understandable because defendant was not fully dressed and it wasa cold March morning, with snow on the ground. Bronner looked back into the apartment and didnot see anything or anyone. He also did not hear anything in the background. Only once duringthe "couple of minutes" that he was talking with defendant did defendant look over his shoulder.There were no cars near the residence, but defendant informed Bronner that Laroe did not own acar. Bronner acknowledged that if defendant had just woken up, as was possible based onBronner's observations of defendant's appearance, defendant may not know precisely what Laroehad done earlier that day. The troopers did not at any time show defendant the arrest warrant forLaroe and, in fact, the warrant was in their car.
When asked what specifically led him to believe that Laroe was in the apartment, Bronnertestified that "there was no car in the driveway. He indicated to me that her mom had come topick her up. He had been in bed, it was between 8:30 and [9:00] in the morning. Um, he wasn'tsure where she was or where she had gone in Plattsburgh although he indicated that she left withher mother and his mannerisms while we were speaking to him, looking back into the apartmentas I was speaking to him, I had the distinct impression that she was in the apartment." AlthoughBronner testified that he "decided" or had the "impression" that Laroe was in her apartment, thelegal question is whether that belief was objectively reasonable (see CPL 120.80 [4];United States v Lauter, 57 F3d 212, 215 [1995]). Based on Bronner's testimony at thesuppression hearing, it was not. Conclusory statements about the "impression" he got fromdefendant's actions or "mannerisms" are insufficient, as Bronner did not explain what specificactions and mannerisms led to his conclusion regarding Laroe's presence in the apartment. "[T]heconstitutional requirement is that [police officers] have a basis for a reasonable belief as to theoperative facts" (United States v Lovelock, 170 F3d 339, 344 [1999], cert denied528 US 853 [1999]).
The only specific action mentioned was defendant looking over his shoulder once during aconversation that lasted a couple of minutes. While certainly a relevant factor, that action, byitself, was insufficient as a matter of law and the remainder of the evidence failed to provide areasonable basis to form a belief that Laroe was present. The lack of a car in the driveway wasconsistent with defendant's statements that Laroe was not present and that she did not own a car.Defendant's statement that Laroe's mother had picked her up was not suspicious, given that shedid not own a car. Bronner testified that defendant indicated that Laroe had gone to Plattsburgh,although he later testified that "the impression that I got was [that defendant] wasn't sure whereshe was." He did not explain what defendant did to create that impression. He also did notexplain whether he meant that "the impression that [he] got" was that defendant did not reallyknow if Laroe was in Plattsburgh, or if defendant was not sure precisely where in Plattsburgh shewent. If Laroe left early in the morning, while defendant was still sleeping, it was understandablethat defendant did not know her exact whereabouts. Similarly, if she had advised him that shewas going to Plattsburgh, she may not have stated or he may not have asked her to identifyprecisely which stores or businesses she planned to visit. Without further explanation, none ofBronner's factual testimony—as distinguished from his impressions, conclusions or vaguereferences to "mannerisms"—established that he possessed an objectively reasonable beliefthat Laroe was present in the apartment when they kicked in the door (see People vBrown, 56 AD2d 543, 544-545 [1977]). A review of the evidence available to the troopers atthe time, viewed in the totality of the circumstances, leads to the conclusion that the facts did notsupport County Court's finding that their belief was reasonable (compare United States vMagluta, 44 F3d 1530, 1537-1538 [1995], cert denied 516 US 869 [1995]).[*6]
The People and the majority note that defendant twicerefused to allow the police to enter the residence, implying that this was a factor leading thetroopers to reasonably believe that Laroe was inside. When dissected, the argument is that thepolice can request consent to enter and thereby be permitted to enter based on whatever answer isgiven: if the answer is yes, the police have secured consent, and may therefore enter; if theanswer is no, the response provides the police with the requisite reasonable belief that the personis being evasive to help the subject of the arrest warrant avoid arrest, thereby permitting them toenter to execute the arrest warrant. Such an argument is based upon faulty logic (see People vCabral, 147 Misc 2d at 1007).
Similarly, the People and the majority focus on defendant's act of slamming thedoor.[FN1]After a couple of minutes of defendant being cooperative and answering each and every one ofBronner's questions—all while standing in the doorway on a cold morning, havingapparently been awakened by the police, and wearing only his underwear and at-shirt—Bronner essentially informed defendant that the troopers did not believe him andthat they intended to enter the apartment to find Laroe despite defendant's repeated statementsthat she was not inside. Bronner even informed defendant that he could be arrested for notallowing them to execute the arrest warrant.[FN2]However, if Laroe was not, in fact, inside the residence and the troopers did not at that time havea reasonable belief that she was present in the residence, they had no authority to enter theresidence to execute the warrant (see CPL 120.80 [4]). Bronner in essence threateneddefendant with arrest to obtain consent to search the home when the police could not otherwiseenter, causing defendant to react by terminating the conversation and invoking his FourthAmendment rights by closing the door. The People and the majority now attempt to usedefendant's reasonable and constitutionally protected reaction as post hoc support for Bronner'spurported "reasonable belief" and actions of kicking in the door, arresting defendant forobstructing governmental administration and searching the apartment.
We simply cannot agree with this lesser standard approved of by the majority; it essentiallypermits any police officer with an arrest warrant to decide for himself or herself, without anyobjective basis whatsoever, that a person who answers the door is lying and [*7]harboring a suspect, thus permitting wholesale entry into residencesin contravention of the protections afforded to citizens against unreasonable searches andseizures by the government. The search here violated defendant's federal and state constitutionalrights (see US Const 4th Amend; NY Const, art I, § 12). The evidence seizedduring the course of that search was fruit of the poisonous tree (see Wong Sun v UnitedStates, 371 US 471, 488 [1963]). Accordingly, County Court should have granteddefendant's suppression motion and dismissed the indictment. Spain, J.P., concurs.
Ordered that the judgment is affirmed.
Footnote 1: While we may only rely onevidence presented at the hearing when reviewing County Court's decision on the suppressionmotion, it is interesting to note that when questioned at trial about the "slam" of the door,Bronner hedged his testimony, stating that the door "wasn't closed quietly but it wasn't a full,wide-open slam."
Footnote 2: At this point, defendant hadalready twice informed Bronner that Laroe was not inside the residence. Yet the majority insiststhat when Bronner stated that defendant could be arrested if he did not let them enter theresidence, defendant should have "again den[ied] that Laroe was within" rather than telling thetroopers that he would not let them in. The law does not impose such a requirement, anddefendant's failure to deny Laroe's presence for a third time, without even being asked, did notindependently, or when considered together with all of the other circumstances, provide thetroopers with a reasonable basis to believe that Laroe was in the apartment.