| People v Floyd |
| 2011 NY Slip Op 05520 [85 AD3d 1052] |
| June 21, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Tanisha Floyd, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert A. Schwartz and Sarah S.Rabinowitz of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (Robbins, J.),rendered May 20, 2009, convicting her of manslaughter in the second degree and criminalpossession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence. Theappeal brings up for review the denial (Carter, J.), after a hearing pursuant to a stipulation in lieuof motions, of the suppression of oral and written statements made by the defendant to lawenforcement officials.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the hearing court properly denied her oral applicationto dismiss the indictment (see People vSmith, 54 AD3d 421, 422 [2008]; People v Gaines, 229 AD2d 448 [1996];People v Bennett, 212 AD2d 1028 [1995]; People v Gopaul, 171 AD2d 754, 755[1991]).
The police are prohibited from making a warrantless and nonconsensual entry into a suspect'shome to make a routine felony arrest (see Payton v New York, 445 US 573, 576 [1980])."Nevertheless, ' [c]ourts have long recognized that the Fourth Amendment is not violated everytime police enter [ ] private premises without a warrant' " (People v McBride, 14 NY3d 440, 445 [2010], cert denied562 US —, 131 S Ct 327 [2010] quoting People v Molnar, 98 NY2d328, 331 [2002]). Here, exigent circumstances existed which justified law enforcement officers'warrantless entry into the defendant's home (see People v McBride, 14 NY3d 440 [2010]; see also People v Desmarat, 38 AD3d913 [2007]). Moreover, an innocent person in the defendant's circumstances would havebelieved that she was free to leave the presence of the police at the time she left for policeheadquarters (see People v Yukl, 25 NY2d 585, 589 [1969], cert denied 400 US851 [1970]), and there is sufficient evidence to support the hearing court's conclusion that thedefendant voluntarily accompanied police personnel to police headquarters (see People vDiaz, 84 NY2d 839, 840 [1994]; People v Martin, 68 AD3d 1015 [2009]). Thus, the hearing courtproperly declined to suppress oral and written statements made by the defendant to lawenforcement officials.
The defendant's challenge to the legal sufficiency of the evidence supporting her convictionof manslaughter in the second degree is unpreserved for appellate review (see People v Hawkins, 11 NY3d484, 492 [2008]) and, in any event, is without merit (see generally People v Contes,60 NY2d 620 [1983]). [*2]Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (see CPL470.15 [5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunity to viewthe witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d383, 410 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt ofmanslaughter in the second degree was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
The defendant's contention that the trial court erred in its charge on justification isunpreserved for appellate review (see CPL 470.05 [2]; see also People v Fowle, 60 AD3d691 [2009]). In any event, the jury was properly instructed on the definition of the term"dwelling" for purposes of Penal Law § 35.15 (see People v Hernandez, 98 NY2d175 [2002]; CJI2d [NY] Penal Law § 35.15).
The defendant received the effective assistance of counsel under both the state and federalstandards (see Strickland v Washington, 466 US 668 [1984]; People v Lane, 60NY2d 748, 750 [1983]; People v Baldi, 54 NY2d 137, 147 [1981]; People v Illescas, 47 AD3d 840,841 [2008]).
The defendant's remaining contention is without merit. Skelos, J.P., Covello, Balkin andAustin, JJ., concur.