| People v Loucks |
| 2015 NY Slip Op 01471 [125 AD3d 887] |
| February 18, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Robert Loucks, Appellant. |
Thomas T. Keating, Dobbs Ferry, N.Y., for appellant.
William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County(Greller, J.), rendered April 30, 2012, convicting him of murder in the second degree,upon his plea of guilty, and imposing sentence. The appeal brings up for review thedenial, after a hearing, of those branches of the defendant's omnibus motion which wereto suppress physical evidence and his statements to law enforcement officials.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the County Court properly deniedsuppression of the physical evidence seized from the house that the defendant sharedwith the victim, his live-in girlfriend. The People met their burden of demonstrating thelegality of the police conduct pursuant to the emergency exception to the warrantrequirement (see People v Berrios, 28 NY2d 361, 367 [1971]; People v Rossi, 99 AD3d947, 949 [2012], affd 24 NY3d 968 [2014]; People v Cole, 85 AD3d1198 [2011]). "[Al]though warrantless entries into a home are 'presumptivelyunreasonable' " (People v Molnar, 98 NY2d 328, 331 [2002], quotingPayton v New York, 445 US 573, 586 [1980]), a warrantless search and seizurein a protected area may be lawful, under some circumstances, pursuant to the emergencydoctrine (see People v Mitchell, 39 NY2d 173, 177-178 [1976]; People vRossi, 99 AD3d at 949). The exception applies where the police (1) have "reasonablegrounds to believe that there is an emergency at hand and an immediate need for theirassistance for the protection of life or property," (2) are "not . . . primarilymotivated by intent to arrest and seize evidence," and (3) have a "reasonable basis,approximating probable cause, to associate the emergency with the area or place to besearched" (People v Mitchell, 39 NY2d at 177-178; see People v Rossi,99 AD3d at 949; People vStanislaus-Blache, 93 AD3d 740, 741-742 [2012]).
The United States Supreme Court has held that the subjective intent of the police isnot relevant in determining the reasonableness of police conduct under the FourthAmendment to the United States Constitution (see Brigham City v Stuart, 547 US398, 403 [2006]). Consequently, the second prong of Mitchell is now relevant, ifat all, only to claims raised under the New York Constitution (see NY Const, artI, § 12). We need not determine in this case whether the second prong ofMitchell is still viable under the New York Constitution (see People vRossi, 99 AD3d at [*2]949; People vStanislaus-Blache, 93 AD3d at 741-742), because we conclude that the actions of thepolice officers were permissible under both Brigham City and Mitchell(see People v Stanislaus-Blache, 93 AD3d at 742).
The evidence presented at the suppression hearing established that the police initiallyentered the house shared by the victim and the defendant after the police received a callreporting that the victim did not appear for a scheduled appointment with a childprotective services agency for the return of her children, and a subsequent call from thegrandmother of one of the children. The grandmother, who was also that child's fosterparent, had called because she was unable to reach the victim. When a patrol officerarrived at the victim's house, the grandmother, who was visibly upset and waiting outsideafter having knocked on the door of the house, informed the officer that it was unusualthat the victim was not returning her calls. The grandmother was very troubled that thevictim had failed to appear to reunite with her children because the victim had undergonea struggle to reunite with them and this was an important day for her. The grandmotherfurther reported that she had made several unsuccessful phone calls to friends and familyto locate the victim, and that she was worried about the victim's well-being. Additionally,she informed the officer that the victim was pregnant. During the interview with thegrandmother, the responding officer, and another officer who subsequently arrived at thelocation, repeatedly knocked on the door of the house, yelled to gain the attention of anyof its occupants, and walked around the outside of the house. The officers heard noresponse except for the sound of dogs barking from inside the house. At that point, oneof the officers opened a window, stuck his head inside, and saw the defendant standingin the living room. Under these circumstances, the initial partial entry into the housethrough the window was lawful (see People v Rossi, 99 AD3d 947 [2012]; People v Stanislaus-Blache, 93AD3d 740 [2012]).
Thereafter, at the officers' request, the defendant opened the front door and steppedonto the front stoop. After speaking with the officers, the defendant invited them insideand consented to their request to look around. He informed them that the victim had leftthe house after they argued, and he had not seen her for about a day and a half. Thedefendant stated that he was a "little worried" about her, and had been looking for her.This additional information established an ongoing emergency and potential danger tolife, justifying the continued presence of the police and their subsequent search of thehouse (see People v Rossi,99 AD3d 947 [2012]; People v Stanislaus-Blache, 93 AD3d 740 [2012]).Additionally, the testimony at the hearing established that the search was not primarilymotivated by the intent to make an arrest or seize evidence, and that there was areasonable basis, approximating probable cause, to associate the area searched with theemergency (see People vRossi, 99 AD3d 947 [2012]; People v Stanislaus-Blache, 93 AD3d 740 [2012]).Moreover, the search that followed the initial police entry was conducted after thedefendant gave his voluntary consent, and was lawful on that alternate ground (seePeople v Cosme, 48 NY2d 286, 290 [1979]; People v Ortiz, 87 AD3d 602 [2011]).
Contrary to the defendant's contention, the record shows that defense counselprovided meaningful representation to the defendant, and, thus, the defendant was notdeprived of the effective assistance of counsel (see People v Benevento, 91NY2d 708 [1998]; People v Baldi, 54 NY2d 137 [1981]).
The defendant's contention that the County Court erred in accepting his plea of guiltywithout inquiring into whether he was knowingly and voluntarily waiving a defense ofintoxication (see Penal Law § 15.25) is unpreserved for appellatereview (see CPL 470.05 [2]; People v Dugin, 51 AD3d 687 [2008]; People v Sioleski, 21 AD3d501, 501-502 [2005]). In any event, this contention is without merit. Nothing in thedefendant's allocution cast doubt upon his guilt, negated an essential element of murderin the second degree, or suggested that a defense of intoxication was applicable (see People v Dugin, 51 AD3d687 [2008]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contentions are without merit. Mastro, J.P., Austin,Maltese and Barros, JJ., concur.