| People v Samuel |
| 2016 NY Slip Op 02222 [137 AD3d 1691] |
| March 25, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vTimothy D. Samuel, Appellant. |
Dianne C. Russell, Rochester, for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Thomas E. Moran,J.), rendered July 2, 2012. The judgment convicted defendant, upon a jury verdict, ofrobbery in the first degree (two counts), robbery in the second degree (two counts),kidnapping in the second degree, assault in the second degree (two counts) and criminalpossession of a weapon in the second degree (two counts).
It is hereby ordered that the case is held, the decision is reserved and the matter isremitted to Supreme Court, Monroe County, for a suppression hearing.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of, inter alia, kidnapping in the second degree (Penal Law § 135.20)and two counts of robbery in the first degree (§ 160.15 [2], [4]), arisingfrom an incident occurring in a two-unit apartment building in the City of Rochester. Inresponse to a 911 call, Rochester police officers responded to the building and found aman bound at the wrists and bleeding from several wounds. The man reported that he hadbeen attacked by several people, some of whom were still in the building. The officerssurrounded the building and apprehended defendant and others as they left the building.The officers then performed what they described as a security sweep of the building,during which they noted, inter alia, the presence of masks, guns, and other apparent itemsof evidence. The officers then withdrew and obtained a search warrant for the building,which resulted in the seizure of numerous objects that were introduced in evidence atdefendant's trial.
Defendant submitted omnibus motions seeking, among other relief, suppression ofthe evidence seized pursuant to the search warrant. He also made several requests for thewarrant application, all of which were denied by the prosecution, and he made severalmotions or requests for an order directing the prosecution to turn over that application,which were denied by County Court (Piampiano, J.). After an in camera review of thesearch warrant application, County Court also denied, without a hearing, defendant'smotion to suppress the evidence seized pursuant to the search warrant. During the trialbefore Supreme Court (Moran, J.), when the prosecution sought to introduce evidenceseized during the execution of the search warrant, defendant orally moved to suppress theitems seized pursuant to the warrant, contending for the first time that the warrant wasimproperly issued because it was based on evidence that was obtained during the earlierwarrantless search, which defendant contended was conducted in violation of Paytonv New York (445 US 573 [1980]) and its progeny. Based on the trial testimonyregarding the conduct of the prewarrant security sweep, Supreme Court concluded, suasponte, that exigent circumstances justified the warrantless search and denied the motionwithout a hearing.
Defendant contends on appeal that, inter alia, County Court and Supreme Court erredin refusing to suppress the evidence seized during the execution of the warrant because itwas the fruit of the prior unconstitutional search of his home. We conclude that SupremeCourt erred in [*2]denying, without a hearing,defendant's midtrial suppression motion.
Initially, defendant contends that County Court erred in refusing to suppress thefruits of the search warrant without conducting a hearing. In his motion papers,defendant contended only that the warrant was not based on probable cause, withoutreference to any prior activity. It is well settled that a "challenge to the facial sufficiencyof a written warrant application presents an issue of law that does not require a hearing,and the court properly determines the merits of such a challenge 'by reviewing theaffidavits alone in order to determine whether they establish probable cause' " forthe search (People vCarlton, 26 AD3d 738, 738 [2006], quoting People v Dunn, 155 AD2d75, 80 [1990], affd 77 NY2d 19 [1990], cert denied 501 US 1219[1991]). Defendant failed to preserve for our review his present contention that CountyCourt erred in upholding the warrant because it was based on evidence obtained during aprior unconstitutional search, "inasmuch as defendant failed to raise it either in hismotion papers or before the suppression court" (People v Fuentes, 52 AD3d 1297, 1298 [2008], lvdenied 11 NY3d 736 [2008]; see People v Facen, 117 AD3d 1463, 1463-1464 [2014],lv denied 23 NY3d 1020 [2014]). In any event, we conclude that the allegationsin defendant's moving papers did not contain sufficient allegations of fact to warrant ahearing on that contention (see People v Ferron, 248 AD2d 962, 963 [1998],lv denied 92 NY2d 879 [1998]; see generally People v Jones, 95 NY2d721, 725 [2001]).
Defendant further contends that County Court erred in concluding that the officerswere aware of the apartment building's design before the security sweep. Defendantfailed to preserve that contention for our review, inasmuch as he did not challenge thewarrant in County Court on that ground (see People v Williams, 127 AD3d 612, 612 [2015]; People v Demus, 82 AD3d1667, 1667-1668 [2011], lv denied 17 NY3d 815 [2011]). Furthermore,defendant did not join in a challenge to the search warrant made by a codefendant'sattorney on that ground, and it is well settled that a "[d]efendant cannot rely on therequest of a codefendant to preserve the claimed . . . error" (People vBuckley, 75 NY2d 843, 846 [1990]; see People v Cabassa, 79 NY2d 722,730 [1992], cert denied sub nom. Lind v New York, 506 US 1011 [1992]). Wedecline to exercise our power to review that contention as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]).
We agree with defendant, however, that Supreme Court erred in denying without ahearing his midtrial motion to suppress the fruits of the search warrant. Defendant'smotion was made shortly after the prosecution belatedly provided the search warrantapplication, which demonstrated that the police officers had searched the building beforethey obtained the search warrant and used the information gained in the initial search intheir application for the warrant. It is well settled that police officers may not conduct anunconstitutional warrantless search and then use the fruits of that search to obtain awarrant (see e.g. People v Perez, 266 AD2d 242, 243 [1999], lv dismissed94 NY2d 923 [2000]; seealso People v Bartholomew, 132 AD3d 1279, 1281 [2015]). To the contrary,such a procedure "undermines the very purpose of the warrant requirement and cannot betolerated" (People v Burr, 70 NY2d 354, 362 [1987], cert denied 485 US989 [1988]; see People vMarinez, 121 AD3d 423, 424 [2014]).
Here, Supreme Court, based on its view of the trial testimony, concluded sua spontethat exigent circumstances justified the protective security sweep of the building, andthus summarily determined that the information gained by the officers during that searchcould properly be considered by the issuing magistrate in determining whether there wasprobable cause to issue the search warrant. That was error. As previously noted herein,defendant's oral motion to suppress challenged the warrant on the ground that it wasbased on information that was obtained in violation of his constitutional rights underPayton v New York (445 US 573 [1980]). In determining whether a hearing isrequired pursuant to CPL 710.60, "the sufficiency of defendant's factual allegationsshould be evaluated by (1) the face of the pleadings, (2) assessed in conjunction with thecontext of the motion, and (3) defendant's access to information" (People vMendoza, 82 NY2d 415, 426 [1993]). We note that the motion was not required tobe made in writing, as would be required for a pretrial motion to suppress (seeCPL 710.60 [1]) and, because it was properly "made orally in open court" during trial,the court was required, "where necessary, [to] conduct a hearing as provided in [CPL710.60 (4)], out of the presence of the jury if any, and make findings of fact essential tothe determination of the motion" (CPL 710.60 [5]).
We conclude that a hearing was necessary herein. Defendant's allegation that thesearch was of his home was sufficient "to demonstrate a personal legitimate expectationof privacy in the searched premises" (People v Wesley, 73 NY2d 351, 357[1989]; cf. People v Scully,14 NY3d 861, [*3]864 [2010]). The People failed topreserve for our review their current contention that, as Supreme Court sua spontedetermined, the security sweep was justified by the emergency doctrine, in order toensure that there were no more victims or perpetrators in the building (see generally People vSylvester, 129 AD3d 1666, 1666-1667 [2015], lv denied 26 NY3d 1092[2015]; People v Whitley,68 AD3d 790, 791 [2009], lv denied 14 NY3d 807 [2010]). We note,however, that Supreme Court made its sua sponte determination before the People had anopportunity to make any argument on the merits, and that the People had raised thiscontention in response to an earlier motion by a codefendant. In any event, the People'scurrent contention merely " 'raise[s] a factual dispute on a material point whichmust be resolved before the court can decide the legal issue' of whether evidence wasobtained in a constitutionally permissible manner" (People v Burton, 6 NY3d 584, 587 [2006]; cf.Scully, 14 NY3d at 864). Thus, before ruling on the motion, "it was incumbent upon[Supreme] [C]ourt to conduct a hearing to determine whether there were sufficientexigent circumstances [or other factors such as an ongoing emergency situation thatwould] justify the . . . warrantless entry" into the building (People v Chamlee, 120 AD3d417, 419 [2014]). Therefore, we hold the case, reserve decision, and remit the matterto Supreme Court for a hearing on defendant's midtrial suppression motion.Present—Smith, J.P., Peradotto, Nemoyer, Curran and Scudder, JJ.