| People v Chamlee |
| 2014 NY Slip Op 05921 [120 AD3d 417] |
| August 21, 2014 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Jamal Chamlee, Also Known as Jamal Chanlee,Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Patricia Curran of counsel), forrespondent.
Appeal from judgment, Supreme Court, New York County (Edward J. McLaughlin,J.), rendered November 8, 2012, convicting defendant, after a jury trial, of criminalpossession of a controlled substance in the second degree, criminal possession of aweapon in the second degree and criminally using drug paraphernalia, and sentencinghim to an aggregate term of 12 years, held in abeyance, and the matter remanded for asuppression hearing.
Defendant moved, pursuant to CPL 710.60, to suppress contraband recovered fromhis apartment on the grounds that the drug paraphernelia and gun were obtained as aresult of an illegal entry to his apartment, and, thus, an illegal search. Alternatively,defendant sought a hearing. The motion court summarily denied both applications,finding that defendant's motion did not contain "sworn allegations of fact" sufficient towarrant a suppression hearing. Defendant denied "engaging in any unlawful activity atthe time he was observed by plain clothes officers" in the hallway outside his apartmentbefore being chased into his apartment by the police officers, who then broke down thedoor.
The facts as set forth in a search warrant application, that the police obtained afterthe forced entry and which were not available to defendant at the time he moved for ahearing, are that an undercover officer saw three or four men outside defendant'sapartment smoking marijuana. The officer alerted the other plainclothes officers whocame to the apartment but did not see or smell marijuana when they arrived. The officersidentified themselves, which caused the four men to run into the apartment and lock thedoor. One of the officers then claimed he heard a male voice say, "[H]ide the gun."Based on these facts, the officers, after requesting entry, broke down the door in order togain entry into the apartment, where they observed drugs and paraphernalia, and, basedupon these observations, obtained a search warrant.
In denying defendant's application for a hearing, the Court summarily found thatexigent circumstances justified the pursuit and warrantless entry, based upon theindividuals in the hallway reportedly having smoked marijuana, then racing into theapartment and locking the door, and the need to prevent destruction of evidence.Defendant argues in his brief that at most some individuals were seen smokingmarijuana, a class B misdemeanor that would not present [*2]exigent circumstances sufficient for a forced entry.
Under the circumstances presented here, where the information proffered by thePeople to support the forcible entry was conclusory and defendant did not have access toavailable information, we find that it was incumbent upon the motion court to conduct ahearing to determine whether there were sufficient exigent circumstances to justify theforced warrantless entry (seePeople v Bryant, 8 NY3d 530 [2007] [holding that a Mapp/Dunawayhearing should have been held where there was a question of whether defendant hadactually engaged in criminal activity warranting a seizure]; see also People v Dunnell, 50AD3d 606 [1st Dept 2008] [holding summary denial of a hearing based solely onlack of standing was improper where People provided limited information concerning thebasis for defendant's arrest], citing People v Hightower, 85 NY2d 988 [1995]).Concur—Gonzalez, P.J., Acosta, DeGrasse, Freedman and Richter, JJ.