| People v Scott |
| 2015 NY Slip Op 08445 [133 AD3d 794] |
| November 18, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Wayne Scott, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Nao Terai of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, Merri Turk Lasky, and Mariana Zelig of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Modica, J.), rendered January 9, 2013, convicting him of criminal possession of acontrolled substance in the seventh degree, resisting arrest, and criminal possession ofmarijuana in the fifth degree, upon a jury verdict, and imposing sentence. The appealbrings up for review so much of an order of the same court (Kron, J.) dated September 5,2012, as, after a hearing, denied, in part, that branch of the defendant's omnibus motionwhich was to suppress physical evidence.
Ordered that the judgment is modified, on the law, by vacating the convictions ofcriminal possession of a controlled substance in the seventh degree and criminalpossession of marijuana in the fifth degree under counts five and seven of the indictment,respectively, vacating the sentences imposed thereon, and dismissing those counts of theindictment; as so modified, the judgment is affirmed, that branch of the defendant'somnibus motion which was to suppress physical evidence is granted to the extent that allphysical evidence recovered from within his home is suppressed, and the order datedSeptember 5, 2012, is modified accordingly.
At a suppression hearing, the People's evidence established that on September 13,2011, New York City Police Officers Patrick Nozdrovicky and James Zozzaro were onanti-crime patrol, in plainclothes, with their sergeant, when they observed the defendantwalking in the middle of a street in Queens speaking irately on a cell phone. The officersapproached in their vehicle and asked the defendant to explain what was going on. Thedefendant explained that he was having an argument with his girlfriend. When OfficerNozdrovicky and his sergeant began to exit the police vehicle, the defendant turned andran. As the defendant turned to run, Officer Zozzaro, who was driving the police vehicle,saw what appeared to be the handle of a gun under the defendant's jacket in the rear ofhis waistband or belt. He yelled "gun" to Officer Nozdrovicky and their sergeant, whohad already commenced pursuit. The defendant ran through a backyard and then througha hole in a fence. He was carrying a knapsack that got caught on the fence, but he left itbehind and continued to run through the next yard and entered a house through a reardoor. The officers who were chasing him on foot grabbed the bag and attempted tofollow the defendant into the house, but the door was locked and they were unable toforce it open. They called the Emergency Services Unit (hereinafter ESU) and set up aperimeter around the house, which they later learned belonged to thedefendant.
[*2] Eventually there were 20 to25 officers at the scene. The ESU officers put on heavy protective vests and helmets, andsome carried bunker shields and a sub-machine gun. The ESU officers entered thedefendant's house and cleared the basement and the first floor, finding no persons oneither floor. Before they ascended to the second floor, the defendant appeared at the topof the staircase and surrendered. He came down the stairs and was searched, arrested, andremoved from the house. No weapon was recovered from his person. The ESU officersthen searched the second floor for other persons, and upon finding none, exited thehouse. After the ESU officers had secured the house and the defendant was outside incustody, the original patrol officers went into the house to the second floor to search forthe gun they believed the defendant had been carrying. On the floor by a nightstand, theofficers found 50 bags of marijuana and what appeared to be ecstasy tablets. In a separatearea of a room on the second floor, inside of a closed storage bin, they found a firearmwrapped in a bandana. The officers also found five bags of marijuana in the knapsack thedefendant abandoned while running.
After a suppression hearing, the Supreme Court suppressed the gun, but otherwisedenied that branch of the defendant's omnibus motion which was to suppress the physicalevidence. With respect to the drugs recovered in the defendant's home, the court held thatthe initial warrantless entry into the house was justified under the emergency exception tothe warrant requirement because the police had seen what appeared to be a gun in thedefendant's waistband and they did not know whether there were any civilians present inthe home. Although the court recognized that any emergency had abated and the ESUofficers had secured the house before the patrol officers conducted the search that led tothe discovery of the drugs, the court held that because the police had maintained acontinued presence at the house and the items were in plain view, the patrol officers'search was lawful.
It is a fundamental principle of the Fourth Amendment to the US Constitution andarticle I, § 12 of the NY Constitution that searches and seizures inside ahome without a warrant are presumptively unreasonable (see Brigham City vStuart, 547 US 398, 403 [2006]; Payton v New York, 445 US 573 [1980];People v Knapp, 52 NY2d 689, 694 [1981]). The government has the burden ofproving that the exigencies of the situation justified the warrantless search of anindividual's home (see Vale v Louisiana, 399 US 30, 34 [1970]; People v Jenkins, 24 NY3d62, 65 [2014]; People v Knapp, 52 NY2d at 694; People v Hodge, 44NY2d 553, 557 [1978]).
Under the emergency exception, the police may make a warrantless entry into aprotected area if (1) they have reasonable grounds to believe that there was an emergencyat hand and an immediate need for their assistance for the protection of life or property,(2) the search was not primarily motivated by an intent to arrest and seize evidence, and(3) there was some reasonable basis, approximating probable cause, to associate theemergency with the area or place to be searched (see People v Mitchell, 39 NY2d173, 177-178 [1976]). Although the United States Supreme Court has determined thatthe second prong regarding the subjective intent of the police is not relevant under theFourth Amendment (see Brigham City v Stuart, 547 US at 404-405), we need notdecide whether the second prong of Mitchell is still viable under the New YorkConstitution because we conclude that the People did not satisfy the first prong ofMitchell (see People vDoll, 21 NY3d 665, 671 n [2013]; People v Dallas, 8 NY3d 890, 891 [2007]; People v Hammett, 126 AD3d999, 1000-1001 [2015]). There was no evidence of any circumstances which wouldhave provided a reasonable basis for the patrol officers to believe that there was anemergency at hand and an immediate need for police assistance for the protection of lifeor property inside the house (cf. People v Hammett, 126 AD3d at 1000; People v Morris, 126 AD3d813, 814 [2015]; People vMormon, 100 AD3d 782, 783 [2012]).
Furthermore, even where exigent circumstances justify the warrantless entry into aprotected area, the scope and duration of the warrantless search must be limited by andreasonably related to the exigencies of the situation (see Mincey v Arizona, 437US 385, 393 [1978]; People v Knapp, 52 NY2d at 696). Here, the subject drugswere not discovered by the ESU officers during their protective sweep. Rather, they werediscovered by the patrol officers, who conducted an evidentiary search after the ESUofficers had secured the house and removed the defendant, who was the only occupant.At the time of the patrol officers' search, any purported exigency had abated, the policewere in complete control of the house, and there was no danger that the defendant, whowas in [*3]custody, would dispose of or destroy theweapon. Accordingly, the police were required to obtain a warrant prior to conductingthe evidentiary search (seePeople v Jenkins, 24 NY3d 62, 64-65 [2014]; People v Knapp, 52 NY2dat 696-698). Moreover, contrary to the suppression court's findings, it is of no avail thatthe contraband was found in plain view, since the patrol officers' warrantless entry wasillegal (see People v Knapp, 52 NY2d at 697; compare People v Stanislaus-Blache, 93 AD3d 740 [2012];People v George, 7 AD3d810 [2004]).
As an alternative ground for upholding the suppression ruling, the People argue thatthe initial entry to the defendant's home was justified because the police were in "hotpursuit" of a fleeing suspect (see United States v Santana, 427 US 38, 42-43[1976]). Because the suppression court did not decide that issue adversely to thedefendant, this Court is precluded from reviewing that issue on the defendant's appeal(see CPL 470.15 [1]; People v Yusuf, 19 NY3d 314, 322 [2012]; People v Ingram, 18 NY3d948, 949 [2012]; People vConcepcion, 17 NY3d 192, 195 [2011]; People v LaFontaine, 92 NY2d470, 473-474 [1998]; People v Goodfriend, 64 NY2d 695 [1984]). Moreover,because the patrol officers' evidentiary search exceeded the scope of any exigency, it isunnecessary to remit the matter to the Supreme Court for further proceedings (cf.People v LaFontaine, 92 NY2d at 474-475; People v Thompson, 118 AD3d 922, 924-925 [2014]).Accordingly, the physical evidence recovered from the defendant's home must besuppressed. In addition, at trial, Officer Zozzaro testified that he was unable to identifythe marijuana specifically recovered from the knapsack. Under the circumstances, thePeople failed to present legally sufficient evidence from which the jury could rationallyconclude that the defendant possessed more than 25 grams of marijuana in the knapsack(see Penal Law § 221.10 [2]). Since there was insufficient evidenceto prove the defendant's guilt of counts five and seven of the indictment, those counts ofthe indictment must be dismissed (cf. People v Henagin, 129 AD3d 864 [2015]; People v Severino, 126 AD3d1015, 1016 [2015]; Peoplev Harris, 122 AD3d 942, 945 [2014]; People v Carmichael, 92 AD3d 687, 688 [2012]).
The defendant's remaining contentions either need not be reached in light of ourdetermination or are without merit. Mastro, J.P., Austin, Maltese and Barros, JJ.,concur.