| People v Harris |
| 2015 NY Slip Op 07113 [132 AD3d 1281] |
| October 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vHarry E. Harris, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Candice Sengillo of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.),rendered October 3, 2012. The judgment convicted defendant, upon his plea of guilty, ofattempted assault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofattempted assault in the second degree (Penal Law §§ 110.00, 120.05[2]), defendant contends that County Court erred in refusing to suppress certain physicalevidence because he was subjected to an unlawful seizure and his consent to the searchof his house was coerced. We reject those contentions.
Contrary to defendant's initial contention, the court properly determined that thepolice officers who removed defendant from his yard did not violate defendant'sconstitutional rights. The testimony at the suppression hearing established that policeofficers had responded to the area for reports of gunshots, and a woman informed thepolice that she had been struck by shotgun fire that came from the area of defendant'shouse. A police officer testified that, upon observing defendant in that area, heimmediately directed defendant to move to a safe location and patted him down forweapons. It is well settled "that police officers serve many different functions withinsociety and that the rules governing encounters with civilians will to a large extentdepend upon the police officer's purpose in initiating the encounter" (People vHollman, 79 NY2d 181, 189 [1992]). "Police are required to serve the community ininnumerable ways, from pursuing criminals to rescuing treed cats. While the FourthAmendment's warrant requirement is the cornerstone of our protections againstunreasonable searches and seizures, it is not a barrier to a police officer seeking to helpsomeone in immediate danger . . . Indeed, '[p]eople could well die inemergencies if police tried to act with the calm deliberation associated with the judicialprocess' . . . Accordingly, 'what would be otherwise illegal absent an. . . emergency' becomes justified by the 'need to protect or preserve life oravoid serious injury' " (People v Molnar, 98 NY2d 328, 331-332 [2002];see generally People v Doll,21 NY3d 665, 670-671 [2013], rearg denied 22 NY3d 1053 [2014], certdenied 572 US &mdash, 134 S Ct 1552 [2014]). Here, we conclude that the evidenceestablishes that the officer acted to ensure defendant's safety and the safety of those in thearea in detaining him briefly and removing him from the area in which the shots werefired (see generally People vEdwards, 52 AD3d 1266, 1267 [2008], lv denied 11 NY3d 736[2008]).
We also reject defendant's contention that he was seized in violation of hisconstitutional rights. The record supports the court's conclusion that defendant was nothandcuffed and placed in a police vehicle until after the officers learned that there wereshotguns in the basement of his house, one of defendant's daughters informed the officersthat defendant had pointed a shotgun at her head earlier in the evening, and the officerswere aware that the victim had been hit by a shotgun blast from that area. At that time,they had reasonable suspicion to detain defendant (see [*2]generally People v De Bour, 40 NY2d 210, 223[1976]).
Finally, we reject defendant's further contention that his consent to the search of hishouse was coerced because, inter alia, he was handcuffed when he agreed to permit thatsearch. It is well settled that "[v]oluntariness is incompatible with official coercion,actual or implicit, overt or subtle," and that " '[w]here there is coercion therecannot be consent' " (People v Gonzalez, 39 NY2d 122, 128 [1976],quoting Bumper v North Carolina, 391 US 543, 550 [1968]). Additionally, "thefact that a defendant was handcuffed has been considered a significant factor indetermining whether his apparent consent was but a capitulation to authority" (id.at 129). Here, however, the court concluded that defendant was not handcuffed when heconsented to the search, and it is well established that "the suppression court's credibilitydeterminations and choice between conflicting inferences to be drawn from the proof aregranted deference and will not be disturbed unless unsupported by the record" (People v Esquerdo, 71 AD3d1424, 1424 [2010], lv denied 14 NY3d 887 [2010] [internal quotation marksomitted]; see People v May,100 AD3d 1411, 1412 [2012], lv denied 20 NY3d 1063 [2013]). There issupport in the record for the court's conclusion, and we decline to disturb it.Present—Scudder, P.J., Smith, Lindley, Valentino and Whalen, JJ.