| People v Hammett |
| 2015 NY Slip Op 02498 [126 AD3d 999] |
| March 25, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Appellant, v Malik Hammett and Java Stewart,Respondents. |
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano andEdward D. Saslaw of counsel), for appellant.
Lynn W.L. Fahey, New York, N.Y. (Allegra Glashausser of counsel), for respondentMalik Hammett.
Appeal by the People from an order of the Supreme Court, Queens County(Lebowitz, J.), dated May 21, 2012, which, after a hearing, granted those branches of thedefendants' separate omnibus motions which were to suppress physical evidence.
Ordered that the order is affirmed.
On August 3, 2011, at approximately 6:45 p.m., New York City Police OfficerPatrick Nozdrovicky and his partner were on anti-crime patrol when they observed thedefendant Malik Hammett lean into the front passenger side of a green sedan parked infront of a house located at 109-78 200th Street, in Hollis, Queens, and engage in whatappeared to be a drug transaction with the defendant Java Stewart. The officersapproached the vehicle, ordered Stewart to exit it, and then arrested both defendants forhaving an open container of alcohol. Meanwhile, a third individual, who was crouchingbehind a vehicle parked in the driveway, stood up quickly and tried to enter the house atthat location through the side door. The officers apprehended this third individual at thedoor and recovered a pound of marijuana from a backpack he had left behind in thedriveway. Moments later, the owner of the house came outside and told the officers thatthe defendants were her upstairs tenants but that they had overstayed their lease. She toldthe officers that she had heard banging and a woman's voice coming from theirapartment, and asked the officers to investigate since she did not believe a woman shouldbe in their apartment. The owner did not express concern for the woman's safety, nor didshe say that she heard the woman crying or screaming. The owner allowed the officers toenter her home, but would not accompany them upstairs because she did not know whatthey would find. Upon opening the door to the upstairs apartment, the officers discovereda woman, whom they arrested. They also saw drugs and drug paraphernalia. Based ontheir observations, the officers obtained and then executed a search warrant at theapartment. They recovered additional evidence, including a firearm and narcotics.
The defendants were indicted for criminal possession of a weapon in the seconddegree and several drug-possession related counts. The defendants thereafter moved,inter alia, to suppress the physical evidence obtained against them. After a Mapphearing (see Mapp v Ohio, 367 US 643 [1961]), those branches of thedefendants' separate omnibus motions which were to suppress physical evidence weregranted. The People appeal.
[*2] Under theemergency exception to the warrant requirement, the police may make a warrantless entryinto a protected area if (1) they have reasonable grounds to believe that there was anemergency at hand and an immediate need for their assistance for the protection of life orproperty; (2) the search was not primarily motivated by an intent to arrest and seizeevidence; and (3) there was some reasonable basis, approximating probable cause, toassociate the emergency with the area or place to be searched (see People vMitchell, 39 NY2d 173, 177 [1976]; People v Rodriguez, 77 AD3d 280, 283 [2010]; People v Desmarat, 38 AD3d913, 914-915 [2007]). The United States Supreme Court has determined that thesecond prong, regarding the subjective intent of the police, is no longer relevant underthe Fourth Amendment (see Brigham City v Stuart, 547 US 398, 404-405[2006]). However, we need not decide whether the second prong of Mitchell isstill viable under the New York Constitution because we conclude that the People did notsatisfy the first prong of Mitchell (see People v Doll, 21 NY3d 665, 671 n [2013]; People v Dallas, 8 NY3d890, 891 [2007]; People v Rodriguez, 77 AD3d at 284). The mere sound ofunspecified banging and a woman's voice coming from the upstairs apartment wasinsufficient to show that there was an emergency at hand requiring the immediateassistance of the police in order to protect life or property (see People v Mormon, 100AD3d 782, 783 [2012]). The owner did not say that she heard the woman screamingor crying for help, and the officers did not observe any indicia of an emergency (seePeople v Hodge, 44 NY2d 553, 556 [1978]; People v Rodriguez, 77 AD3d at286; People v Desmarat, 38 AD3d at 914).
The People's remaining contention is unpreserved for appellate review and, in anyevent, without merit.
Accordingly, the Supreme Court properly granted those branches of the defendants'respective omnibus motions which were to suppress physical evidence. Dillon, J.P.,Chambers, Hall and Maltese, JJ., concur.