| People v Weathers |
| 2012 NY Slip Op 07808 [100 AD3d 1521] |
| November 16, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Appellant, v Cornell B.Weathers, Respondent. (Appeal No. 1.) |
—[*1] Leslie R. Lewis, New Hartford, for defendant-respondent.
Appeal from an order of the Supreme Court, Oneida County (Barry M. Donalty, A.J.), datedSeptember 14, 2011. The order granted that part of the motion of defendant to suppress certainphysical evidence.
It is hereby ordered that the order so appealed from is unanimously affirmed.
Memorandum: In each appeal, the People appeal from an order granting those parts of therespective motions of defendants seeking suppression of all of the physical evidence recoveredfrom their residence (premises). We affirm. We conclude that Supreme Court properlydetermined that the police lacked exigent circumstances to enter the premises without a warrant(see People v Hunter, 92 AD3d1277, 1280-1281 [2012]; seegenerally People v McBride, 14 NY3d 440, 446 [2010], cert denied 562 US—, 131 S Ct 327 [2010]). The evidence at the suppression hearing established that thepolice received information from an informant that a suspect was going to the premises topurchase cocaine. The police observed that suspect, for whom they had a warrant to search hisperson and residence, enter the premises and then exit approximately five minutes later withanother man. The other man drove away, and the suspect walked toward his residence. Thepolice apprehended the suspect and arrested him. Upon executing the warrant, the police foundcocaine on the suspect's person and at his residence. Thereafter, the police forcibly entered thepremises without a warrant and secured the premises until a warrant could be obtained. A policeinvestigator testified that the police entered the premises without a warrant because they wereconcerned that the occupants of the premises would dispose of any cocaine located there. At thetime of the entry, however, the police had no reason to believe that anyone remained at thepremises because the police waited approximately 30 minutes after the suspect's arrest beforeentering the premises and did not keep the premises under surveillance during that time. Thus,there is no evidence that the police had "a reasonable belief that [any] contraband [was] about tobe removed . . . [or] information indicating that the possessors of [any] contraband[were] aware that the police [were] on their trail" (People v Lewis, 94 AD2d 44, 49[1983]). Finally, we do not address the People's contention concerning the independent sourcetheory, which is raised for the first time on appeal and thus is not properly before us (seePeople v Johnson, 64 NY2d 617, 619 n 2 [1984]; People v Dodt, 61 NY2d 408, 416[1984]; see also People v Hunter, 17NY3d 725, 727-728 [2011]). Present—Centra, J.P., Peradotto, Lindley, Sconiers andMartoche, JJ.