| People v Gibson |
| 2014 NY Slip Op 03877 [117 AD3d 1317] |
| May 29, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJohn Gibson, Appellant. |
John P.M. Wappett, Public Defender, Lake George (Bryan M. Racino of counsel),for appellant.
Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport ofcounsel), for respondent.
Peters, P.J. Appeal from a judgment of the County Court of Warren County (Hall Jr.,J.), rendered August 16, 2011, convicting defendant upon his plea of guilty of the crimesof criminal possession of a weapon in the third degree and menacing in the seconddegree.
Defendant was arrested and charged with criminal possession of a weapon in thethird degree and menacing in the second degree after waving a gun at two taxicab driversoutside the door of his apartment. County Court denied defendant's motion to suppress apellet gun seized from his apartment, concluding that probable cause existed fordefendant's arrest and that the warrantless entry into his apartment was justified by theemergency doctrine. At the ensuing trial, prior to the close of the People's case, defendantpleaded guilty to the indictment. County Court sentenced him, as a persistent felonyoffender, to an aggregate prison term of 15 years to life. Defendant appeals.
Defendant's contention that count one of the indictment failed to adequately informhim of the nature of the accusations against him is without merit. Such count used therelevant statutory language to charge defendant with criminal possession of a weapon inthe third degree and set forth additional information as to the date and location of theoffense, thereby alleging "where, when and what" defendant purportedly did (Peoplev Iannone, 45 NY2d 589, 598 [1978]; [*2]seeCPL 200.50 [7] [a]; People vYoung, 100 AD3d 1186, 1188 [2012], lv denied 21 NY3d 1021 [2013];People v Perez, 93 AD3d1032, 1034 [2012], lv denied 19 NY3d 1000 [2012]). Because the chargedoffense can be committed by possessing either an imitation pistol or a dangerous weapon(see Penal Law §§ 265.01 [2]; 265.02 [1]), the failure of theindictment to so specify did not render that count jurisdictionally inadequate (seePeople v Hagmann, 160 AD2d 1125, 1128 [1990]; People v Nicholas, 35AD2d 18, 20 [1970]; see also People v Charles, 61 NY2d 321, 327-328[1984]).
We agree with County Court that exigent circumstances existed to justify thewarrantless entry into defendant's apartment, and that the subsequent seizure of the gunin plain view was lawful. "Appraising a particular situation to determine whether exigentcircumstances justified a warrantless intrusion into a protected area presents difficultproblems of evaluation and judgment. This difficulty is highlighted by the fact thatJudges, detached from the tension and drama of the moment, must engage in reflectionand hindsight in balancing the exigencies of the situation against the rights of theaccused" (People v Mitchell, 39 NY2d 173, 177 [1976], cert denied 426US 953 [1976]). Pursuant to the emergency exception to the warrant requirement, thepolice may make a warrantless entry into a protected area if three prerequisites are met:"(1) The police must have reasonable grounds to believe that there is an emergency athand and an immediate need for their assistance for the protection of life or property. (2)The search must not be primarily motivated by intent to arrest and seize evidence. (3)There must be some reasonable basis, approximating probable cause, to associate theemergency with the area or place to be searched" (id. at 177-178).[FN1]
The requisite reasonable grounds for the belief that an emergency exists must bebased upon objective facts, rather than the subjective feelings of the police (seeid. at 178; People vMusto, 106 AD3d 1380, 1382 [2013], lv denied 21 NY3d 1007 [2013];People v Greenleaf, 222 AD2d 838, 840 [1995], lv denied 87 NY2d 973[1996]).
At approximately 9:00 p.m. on an October night, police received a 911 dispatch thata male suspect was pointing a gun at two taxicab drivers outside a residence. Officersarrived at the scene within minutes and surrounded the building. They possessed nodescription of the perpetrator, learning only that the male suspect had entered theright-side door of the residence. As the police shone the spotlights of their vehicles at thebuilding, an officer observed people moving in the windows on the second floor.Moments later—unprompted by any communications from or demands by thepolice—a man emerged from the right door of the building. He was instructed toget down on the ground, handcuffed and searched. No weapon was found on him, yet hedenied that there was anyone else in the residence. With the right-hand door still openand its interior dark, one officer entered the residence, followed by another, to [*3]determine if someone inside was armed or injured.
In our view, the information known to law enforcement rendered it objectivelyreasonable for the officers to believe that the armed perpetrator could still be inside thebuilding. Although the dissent stresses the fact that the subject building was amultifamily house, thus discounting the officer's observation of people on the secondfloor, the evidence adduced at the suppression hearing does not establish that theresponding officers had any knowledge of the building's configuration. To the contrary,both the arresting officer and one of the officers who ultimately entered the apartmenttestified that, at that point in time, they were unaware of the layout of the building. Whilefurther investigation and consideration removed from the exigencies of the situation mayhave uncovered this fact, "the requirement of reasonable grounds to believe that anemergency existed must be applied by reference to the circumstances then confrontingthe officer, including the need for a prompt assessment of sometimes ambiguousinformation concerning potentially serious consequences" (People v Rodriguez, 77 AD3d280, 291 [2010], lv denied 15 NY3d 955 [2010] [internal quotation marksand citations omitted]; see People v Calhoun, 49 NY2d 398, 403 [1980]). Underthe circumstances presented, we are not willing to conclude that the police should haveassumed that this individual was the perpetrator and were constitutionally precluded fromconducting a protective sweep to ascertain whether any armed persons were inside (see People v Garcia, 27 AD3d307, 307 [2006], lv denied 6 NY3d 894 [2006]; People v Rivera, 257AD2d 425, 426 [1999], lv denied 93 NY2d 901 [1999]; People v Love,204 AD2d 97, 98 [1994], affd 84 NY2d 917 [1994]; People v DePaula,179 AD2d 424, 426 [1992]; cf.People v Stevens, 57 AD3d 1515, 1516 [2008], lv denied 12 NY3d 822[2009]).
As for the remaining two prongs of the emergency doctrine, the officers'testimony—which County Court found credible—established that entry intodefendant's apartment was for the purpose of ascertaining whether a suspect or othervictims were inside. The brevity of the sweep and the fact that the officers did not turn onthe lights when they entered further support the finding that the primary motivation wasnot to conduct a search for evidence. Finally, the victims had identified the right door tothe building as the one that the suspect had entered after waving the gun at them, and theofficers therefore had a reasonable basis to associate defendant's apartment with the areato be searched. Accordingly, we find that the police were presented with exigentcircumstances justifying their warrantless entry into defendant's home (see People vMitchell, 39 NY2d at 180; People v Musto, 106 AD3d at 1381-1383; People v Rossi, 99 AD3d947, 949-950 [2012], lv granted 20 NY3d 1066 [2013]).
Once inside, the officers conducted a sweep of what was found to be a small, onebedroom apartment and determined that no one was present. As he was exiting, oneofficer observed a gun in a holster in a partially opened dresser drawer. While defendantquestions this officer's testimony that his discovery of the weapon was inadvertent,County Court found such testimony to be credible, and we find no basis upon which todisturb that determination (see People v Prochilo, 41 NY2d 759, 761 [1977]; People v Merritt, 96 AD3d1169, 1170 [2012], lv denied 19 NY3d 1027 [2012]; People v Everett, 96 AD3d1105, 1106 [2012], lv denied 19 NY3d 996 [2012]). As this officer waslawfully in defendant's apartment pursuant to the emergency doctrine, the gun was inplain view as he was exiting and its incriminatory nature was readily apparent, seizure ofthat evidence was lawful (see People v Diaz, 81 NY2d 106, 110 [1993];People v Spencer, 272 AD2d 682, 683 [2000], lv denied 95 NY2d 858[2000]; People v Carby, 198 AD2d 366, 366-367 [1993], lv denied 82NY2d 922 [1994]; People v Cranmer, 167 AD2d [*4]566, 567 [1990], lv denied 77 NY2d 904[1991]).[FN2]
We are similarly unpersuaded by defendant's contention that his arrest was withoutprobable cause. Probable cause exists where the police have " 'informationsufficient to support a reasonable belief that an offense has been . . .committed' by the person arrested" (People v Shulman, 6 NY3d 1, 25 [2005], certdenied 547 US 1043 [2006], quoting People v Bigelow, 66 NY2d 417, 423[1985]). Hearsay statements may, in whole or part, establish probable cause, so long asthe People establish both that the informant was reliable and had some basis for theknowledge transmitted (see People v Ketcham, 93 NY2d 416, 421 [1999];People v Bigelow, 66 NY2d at 423; see generally Spinelli v UnitedStates, 393 US 410 [1969]; Aguilar v Texas, 378 US 108 [1964]). Evenhearsay-upon-hearsay may establish probable cause, as "the issue is not the length of thechain but rather whether both prongs of the [Aguilar-Spinelli] test are met at eachlevel" (People v Parris, 83 NY2d 342, 347-348 [1994] [internal quotation marksand citations omitted]).
At the suppression hearing, police officers testified that they responded to a policedispatch that a man was waving a gun at a cab driver. The police dispatcher's informationcame from the cab company dispatcher who, in turn, was receiving information directlyfrom a victim. In addition, while at the scene, the officer who was speaking to the victimsfrom a safe distance was providing information to the other officers via radio, includingthat the victims had observed the suspect enter the right-side door of the building. In bothinstances, each informant in the chain had a basis for the knowledge transmitted, whichoriginated from the victims' personal observations of the events described. Moreover,information provided by private citizen informants—such as the taxicab dispatcherand the eyewitness victims—is presumed to be reliable (see id. at 350;People v Hetrick, 80 NY2d 344, 349 [1992]), as is information received from afellow police officer (see People v Ketcham, 93 NY2d at 420; People vLandy, 59 NY2d 369, 375 [1983]). Thus, both prongs of the Aguilar-Spinellitest were met. When moments later defendant exited from that same right-side door thatthe perpetrator was observed to have entered, the officers were justified in forciblydetaining him in order to quickly confirm or dispel their reasonable suspicion that he wasthe gunman (see People v Allen, 73 NY2d 378, 380 [1989]; People vHicks, 68 NY2d 234, 240-241 [1986]; People v Stroman, 107 AD3d 1023, 1024 [2013], lvdenied 21 NY3d 1046 [2013]; People v Mabeus, 68 AD3d 1557, 1560-1561 [2009], lvdenied 14 NY3d 842 [2010]; People v Tillman, 57 AD3d 1021, 1023 [2008]). Once asweep of the apartment verified that there was no one else present and that there was noother [*5]access to the rest of the building, police hadprobable cause to arrest defendant (see People v Stroman, 107 AD3d at 1024; People v Rose, 72 AD3d1341, 1345 [2010], lv denied 16 NY3d 745 [2011]; People vTillman, 57 AD3d at 1023).[FN3]
Defendant's remaining contentions do not require extended discussion. County Courtdid not err in denying defendant's motion to reopen the suppression hearing, as he failedto establish that the additional evidence he sought to introduce could not have beendiscovered with reasonable diligence prior to the court's ruling on the original motion(see CPL 710.40 [4]; People v Wynn, 55 AD3d 1378, 1379 [2008], lvdenied 11 NY3d 901 [2008]; People v King, 170 AD2d 710, 712 [1991],lv denied 77 NY2d 997 [1991]). Finally, we find no support for defendant's claimthat he was punished for asserting his right to trial. Although the pretrial plea offerrejected by defendant would have resulted in a significantly lighter sentence, defendantreceived the minimum permissible sentence upon the court's decision to sentence him asa persistent felony offender (see Penal Law §§ 70.00 [3] [a][i]; 70.10 [2]). That determination was made after fully exploring the details ofdefendant's extensive criminal history—which included 37 arrests resulting in 28convictions, 10 of which were for felonies—and after having heard the victims'testimony as to how defendant's actions had put them in fear for their lives. Under thesecircumstances, we will not disturb defendant's sentence (see People v Wicks, 73 AD3d1233, 1236-1237 [2010], lv denied 15 NY3d 857 [2010]; People v Jenner, 39 AD3d1083, 1088 [2007], lv denied 9 NY3d 845 [2007]).
Stein and Egan Jr., JJ., concur.
Rose, J. (concurring in part and dissenting in part). I disagree with the majority'sconclusion that the People established the existence of emergency circumstancesjustifying the warrantless entry into defendant's apartment and, therefore, respectfullydissent from that part of the decision.
Warrantless searches and seizures within the privacy of the home are presumptivelyunreasonable, and the People bear the burden of establishing that the police conduct atissue falls within a carefully circumscribed exception to the warrant requirement (seePayton v New York, 445 US 573, 586 [1980]; Vale v Louisiana, 399 US 30,34 [1970]; People v Knapp, 52 NY2d 689, 694 [1981]). In my view, oncedefendant was in custody, the record discloses no reasonable grounds to believe that anemergency was at hand justifying a warrantless entry into his apartment. Testimony at thesuppression hearing established that at approximately 9:00 p.m., the police received a911 report of a person pointing a gun at the caller. Upon arrival at the scene minuteslater, the police observed a multifamily house with a main, front porch entrance as well[*6]as a separate, smaller porch and door on the right sideof the building. They learned that there were two victims, both taxicab drivers, and thatthe male with the gun had gone into his right-side apartment door. The victims wereremoved to a safe distance from the residence and, shortly after the police aimed theirspotlights at the house, defendant emerged from the right-side apartment door, leavingthe door open and the lights off inside. Defendant complied with the officers' directionsto lay down on the ground outside the house, he was handcuffed and searched, but noweapon was found. The police officer who handcuffed defendant asked him if anyoneelse was inside the apartment, and defendant said no. That police officer then directedanother officer to enter the darkened apartment in order to determine if anyone else wasinside.
This evidence discloses no objective facts upon which to base a reasonable beliefthat any additional victims or suspects were in the apartment (see People v Fields,45 NY2d 986, 988 [1978]; People v Mormon, 100 AD3d 782, 783 [2012], lvdenied 20 NY3d 1102 [2013]; People v Thomas, 72 AD2d 910, 912 [1979]).The officers were aware of one male suspect and two victims, all of whom wereaccounted for at the time of entry. Indeed, the officer who took defendant into custodyand directed the second officer to enter the apartment testified that defendant was beingdetained as a suspect and that he did not have any information that there was someoneelse in the apartment. Under these circumstances, I cannot conclude that the People haveidentified any objective facts supporting a conclusion that there was an emergencysituation requiring their assistance inside the apartment (see People v Harper, 100AD3d 772, 773-774 [2012], lv denied 21 NY3d 943 [2013]; People v Liggins, 64 AD3d1213, 1215-1216 [2009], appeal dismissed 16 NY3d 748 [2011]; Peoplev Durden, 119 AD2d 766, 767 [1986]; compare People v Paulino, 216 AD2d238, 238 [1995], lv denied 87 NY2d 849 [1995] [police had reasonable beliefthat someone inside apartment was in need of assistance when they heard "loud screams"coming from apartment]).
Although the majority relies on the fact that the officer who entered the apartmenttestified that he saw people moving in the windows on the second floor of thismultifamily house and he did not know if they could access defendant's apartment, thatofficer cited no basis to believe that the second-floor residents were in danger, posed anyimminent threat or were anything other than innocent residents of the upstairsapartments. In order to conduct a "protective sweep," there must be " 'articulablefacts which, taken together with the rational inferences from those facts, would warrant areasonably prudent officer in believing that the area to be swept harbors an individualposing a danger to those on the arrest scene' " (People v Bost, 264 AD2d425, 426 [1999], quoting Maryland v Buie, 494 US 325, 334 [1990]).Speculation that someone else may be in the apartment and might pose a threat is aninsufficient basis on which to justify a protective sweep (see People v Coles, 105 AD3d1360, 1363 [2013]; People v Harper, 100 AD3d at 774; People vBost, 264 AD2d at 426; see also United States v Carter, 360 F3d 1235,1242-1243 [10th Cir 2004] [police cannot infer danger from the fact that a dwelling isoccupied]; United States v Kinney, 638 F2d 941, 944 [6th Cir 1981], certdenied 452 US 918 [1981] [same]).
Further, although no weapon was found on defendant, and it was reasonable toassume that it was in the apartment, "[t]he mere fact that police have information that aweapon is located within a suspect's apartment . . . does not justify awarrantless entry" (People v Lott, 102 AD2d 506, 509 [1984], citing Matterof Kwok T., 43 NY2d 213, 220-221 [1977]; see People v Coles, 105 AD3dat 1363; compare People v Adams, 236 AD2d 293, 293 [1997], lv denied90 NY2d 854 [1997] [warrantless entry was justified where police officers observedchildren in the apartment and reasonably believed that the defendant had left a loadedpistol there]; People v [*7]Gayle, 79 AD2d 717,717 [1980], affd 58 NY2d 636 [1982], cert denied 460 US 1088 [1983][warrantless entry was justified where police had actual knowledge of presence of secondrobbery suspect in a motel room with a sawed-off shotgun]). As additional factors,County Court noted that defendant lived on a busy street near a school and a day-carefacility, but these cannot give rise to an emergency in the absence of any reasonable basisto believe that someone was in the apartment who posed an immediate danger.[FN4]
Inasmuch as my view of the evidence leads to the conclusion that the People failed toestablish the existence of an emergency justifying the warrantless entry into defendant'sapartment, I respectfully dissent from that part of the majority decision. I otherwiseconcur with the majority's remaining conclusions.
Ordered that the judgment is affirmed.
Footnote 1:The United StatesSupreme Court has eliminated the second factor for 4th Amendment purposes (seeBrigham City v Stuart, 547 US 398, 404-405 [2006]), and the Court of Appeals hashad no occasion to consider whether this factor remains viable under the NYConstitution in light of that decision (see People v Doll, 21 NY3d 665, 671 n [2013], certdenied 572 US &mdash, 134 S Ct 1552 [2014]; People v McBride, 14 NY3d 440, 447 n [2010], certdenied 562 US &mdash, 131 S Ct 327 [2010]; People v Dallas, 8 NY3d 890, 891 [2007]). The issue neednot be determined here since, in our view, the police were presented with an emergencysituation under both standards.
Footnote 2:This officer testified thathe exited the apartment briefly to obtain a camera so that he could take a picture of thegun before seizing it. To the extent that defendant now argues that this subsequent entryinto the apartment to effectuate the seizure was constitutionally impermissible, he failedto preserve this issue for our review (see CPL 470.05 [2]; People vDancey, 57 NY2d 1033, 1034-1035 [1982]; People v Crawford, 61 AD3d 773, 774 [2009], lvdenied 13 NY3d 743 [2009]). In any event, his contention lacks merit (see Peoplev Myrtetus, 43 NY2d 758, 759-760 [1977]; People v Daniels, 97 AD3d 845, 849 [2012], lvdenied 20 NY3d 931 [2012]; People v Desmarat, 38 AD3d 913, 915 [2007], lvdenied 9 NY3d 842 [2007]; People v George, 7 AD3d 810, 811 [2004], lvdenied 3 NY3d 674 [2004]).
Footnote 3:As the Peopleestablished probable cause for defendant's arrest based upon the testimony adduced at theinitial suppression hearing, County Court's decision to grant the People's motion toreopen the hearing for presentation of further proof on this issue did not, as defendantasserts, have the effect of "afford[ing] the People a second chance to succeed where oncethey had tried and failed" (People v Havelka, 45 NY2d 636, 643 [1978] [internalquotation marks and citation omitted]).
Footnote 4:County Court alsoconcluded that defendant consented to the search, but defendant was clearly in custody atthe time and the People—correctly—do not rely on the alleged consent asjustification for the warrantless entry (see generally People v Gonzalez, 39 NY2d122, 128-130 [1976]).