People v Richardson

2015 NY Slip Op 07142 [132 AD3d 1313]

October 2, 2015

Appellate Division, Fourth Department

As corrected through Wednesday, December 9, 2015

[*1]

The People of the State of New York,Respondent, v Rajsheem J. Richardson, Appellant. (Appeal No.1.)

Law Offices of Joseph D. Waldorf, P.C., Rochester (Joseph D. Waldorf of counsel),for defendant-appellant.

Cindy F. Intschert, District Attorney, Watertown (Harmony Healy of counsel), forrespondent.

Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.),rendered May 24, 2013. The judgment convicted defendant, upon his plea of guilty, ofcriminal possession of a controlled substance in the third degree.

It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.

Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himupon his plea of guilty of criminal possession of a controlled substance in the thirddegree (Penal Law § 220.16 [1]) and, in appeal No. 2, he appeals from ajudgment convicting him upon his plea of guilty of criminal possession of a controlledsubstance in the third degree (id.) involving a separate incident. County Courtsentenced defendant to concurrent determinate terms of incarceration.

Contrary to defendant's contention in appeal No. 1, the court properly refused tosuppress evidence, i.e., cocaine, seized from an apartment that he leased as a tenant. It isundisputed that the police entered the apartment without a warrant but that no search wasconducted until a warrant was obtained. We conclude that the court properly determinedthat the police had probable cause to believe that a crime was being committed in theapartment and that exigent circumstances existed for the warrantless entry into theapartment (see generally Peoplev McBride, 14 NY3d 440, 445 [2010], cert denied 562 US 931[2010]).

The police received a complaint that there was a strong odor of marijuana comingfrom a certain apartment, and that the odor was causing the complainant's children to feelill. In response, a police officer knocked on the door of the apartment to investigatewhether it was the source of the odor. The door was opened by a man (codefendant) whowas known to the officer. When the officer told codefendant that he needed to talk to himabout the odor of marijuana, which was much stronger after the door was opened,codefendant tried to slam the door, and the officer prevented him from doing so byplacing his foot in the threshold. He and other officers thereafter entered the apartment,and he observed two other occupants and what appeared to be a large amount of cocaineon the kitchen counters. Defendant was not at the apartment. The officer left theapartment to obtain a warrant and, after doing so, the evidence was seized and theoccupants were arrested.

Less than two hours before he entered defendant's apartment, the same officer wasconducting surveillance of the apartment building for suspected drug trafficking, and heobserved defendant enter the building by a door that led to the apartment. Shortlythereafter, the officer observed a man known to him to have a revoked driver's licenseexit the building from the door by which defendant entered. After the man drove away,the officer arrested him for unauthorized operation of a motor vehicle, and the man toldthe officer that he had purchased cocaine from [*2]codefendant, whom he referred to by a nickname, at anapartment that matched the location of the apartment leased by defendant. The man wasthereafter picked up at the scene of his arrest by the mother of defendant's child, a personalso known to the officer.

The officer testified that he did not seek a search warrant before knocking on thedoor because he was not "100% certain" that the odor was emanating from the apartment,and because the man he arrested refused to cooperate with respect to a warrantapplication, and he did not consider the man to be a sufficiently reliable source forpurposes of seeking a warrant.

The court properly determined that the police had the right to knock on the door toinvestigate the complaint of the odor of marijuana (see People v Kozlowski, 69NY2d 761, 762-763 [1987], rearg denied 69 NY2d 985 [1987]; cf. Florida vJardines, 569 US &mdash, &mdash, 133 S Ct 1409, 1414-1415 [2013]). Aftercodefendant opened the door, the officer then had probable cause to believe both thatthere was marijuana in the apartment, based upon the strong odor that emanatedtherefrom, and that codefendant had sold cocaine to the man the officer had arrested. Thecourt properly determined that exigent circumstances arose when codefendant attemptedto slam the door inasmuch as it "is well known that persons who engage in drugtrafficking will often attempt to dispose of the narcotics or escape" (People vBrown, 274 AD2d 941, 942 [2000], affd 95 NY2d 942 [2000]; see People v Ellison, 46 AD3d1341, 1343 [2007], lv denied 10 NY3d 862 [2008]). "Courts have longrecognized that the Fourth Amendment is not violated every time police enter a privatepremises without a warrant. Indeed, though warrantless entries into a home are'presumptively unreasonable' . . . , '[t]he touchstone of the FourthAmendment is reasonableness'—not the warrant requirement" (People vMolnar, 98 NY2d 328, 331 [2002]). We conclude that, here, both probable cause andexigent circumstances existed "to justify a warrantless entry" (McBride, 14 NY3dat 445; cf. People v Hunter,92 AD3d 1277, 1280 [2012]).

We reject defendant's further contention in appeal No. 1 that his Alford pleawas legally and factually insufficient because he denied that he saw cocaine in theapartment on the day in question and because he denied that he knew that the occupantswere selling drugs. Defendant admitted that he sublet the apartment to a person he knewto be a drug dealer, that he was at the apartment on the day in question and that, withinthe two weeks prior to the day in question, he had seen implements in the apartment usedto make crack cocaine. Defendant also stated that he was accepting the plea offer of asentence of 51/2 years of imprisonment with three years of postreleasesupervision, to run concurrently with the 51/2 year term of imprisonmentimposed in appeal No. 2, in order to avoid the possibility of being convicted of the moreserious count charged in the indictment or receiving a longer sentence. The People madean offer of proof that, less than two hours after defendant was at the apartment, the policeseized in excess of three pounds of cocaine in plain view, as well as implements to makecrack cocaine; that defendant had been observed entering and leaving the building onseveral occasions by police officers conducting surveillance; that there were no beds orother furnishings to indicate that people lived in the apartment and that, instead, itappeared to be used to store and sell controlled substances; and that there were severalrecorded jail telephone conversations between codefendant and defendant that implicateddefendant. It is axiomatic that, " '[i]n New York, [an Alford] plea isallowed only when, as in Alford itself, it is the product of a voluntary and rationalchoice, and the record before the court contains strong evidence of actual guilt' "(People v Richardson, 72AD3d 1578, 1579 [2010]; see People v Hill, 16 NY3d 811, 814 [2011]). We concludethat both conditions are present on this record (see People v Cruz, 89 AD3d 1464, 1465 [2011], lvdenied 18 NY3d 993 [2012]; cf. Hill, 16 NY3d at 814; Richardson,72 AD3d at 1579).

In light of our determination in appeal No. 1, there is no basis to reverse thejudgment in appeal No. 2 and vacate defendant's plea of guilty (see People v Roosevelt, 125AD3d 1452, 1455 [2015], lv denied 25 NY3d 1076 [2015]; cf. People vFuggazzatto, 62 NY2d 862, 863 [1984]). Present—Scudder, P.J., Centra,Peradotto, Lindley and Valentino, JJ.