| People v Avinger |
| 2016 NY Slip Op 04426 [140 AD3d 895] |
| June 8, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Carl E. Avinger, Appellant. |
Lynn W. L. Fahey, New York, NY (Barry Stendig of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, Samantha S. Alessi, and Joseph N. Ferdenzi of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Kron, J.), rendered October 24, 2013, convicting him of burglary in the third degree,criminal possession of stolen property in the third degree, possession of burglar's tools,and criminal mischief in the fourth degree, upon his plea of guilty, and imposingsentence. The appeal brings up for review the denial, after a hearing (Paynter, J.), of thatbranch of the defendant's omnibus motion which was to suppress physical evidence.
Ordered that the judgment is reversed, on the law, the plea is vacated, that branch ofthe defendant's omnibus motion which was to suppress physical evidence is granted, andthe matter is remitted to the Supreme Court, Queens County, for further proceedings onthe indictment.
According to the evidence presented at the suppression hearing, on January 2, 2012,a detective of the New York City Police Department was assigned to investigate aburglary that had occurred that day at a pawn shop in Queens. An eyewitness told thedetective that he had observed two individuals load a big file cabinet from the pawn shopinto a car bearing a certain license plate number. After performing a computer check onthe license plate number, the detective learned that the car was registered to a womanwho lived in a row house on 204th Street in Queens (hereinafter the subject house).
The following day, January 3, 2012, the detective went to the subject house. Heknocked on the door and rang the doorbell several times, but received no response. Thedetective then walked through the yard of a house located two doors down from thesubject house (hereinafter the neighboring house), and entered the rear yard of theneighboring house. From the rear yard of the neighboring house, the detective entered analleyway that provided access to 203rd Street for the rear yards and garages of the houseson 204th Street. The detective observed a vehicle parked in the alleyway bearing thelicense plate number given by the eyewitness. The vehicle was parked opposite adetached garage located in the rear yard of the subject house. From the alleyway, thedetective looked through an open side window of the garage, and observed several boxescontaining video game consoles stacked inside.
[*2] The detective then entered the fenced-in rear yard ofthe subject house by opening a gate and walking through it. After hearing voices comingfrom inside the garage, the detective identified himself by saying "police." As he did so,he looked through the window of the garage again, and saw hundreds of video gamesinside. The defendant and his codefendant exited the garage through a rear door leadingto the rear yard of the subject house, and the detective placed them under arrest. Thedetective then recovered a sum of money from the defendant's person, and video gameconsoles, video games, and a notebook from the garage. Subsequently, the detectivelearned that the video game consoles and video games recovered from the garage hadbelonged to a video game store that had been burglarized on the morning of January 3,2012. At some point, the detective learned that the defendant lived at the subjecthouse.
The defendant was subsequently charged with burglary in the third degree, amongother crimes, arising out of the burglary of the video game store. Following the denial ofthat branch of his omnibus motion which was to suppress physical evidence, thedefendant pleaded guilty to the charged crimes. The defendant now appeals from thejudgment of conviction. We reverse.
"[S]ubject only to carefully drawn and narrow exceptions, a warrantless search of anindividual's home is per se unreasonable and hence unconstitutional" (People v Jenkins, 24 NY3d62, 64 [2014] [internal quotation marks omitted]). In addition, "absent consent orexigent circumstances, no private dwelling may be entered by the police to arrest itsoccupant if an arrest warrant has not been obtained" (People v Levan, 62 NY2d139, 144 [1984]; see Payton v New York, 445 US 573 [1980]). "Because'physical entry of the home is the chief evil against which the wording of the FourthAmendment is directed,' [a] defendant has no burden to show that he [or she] had an'expectation of privacy' " in his or her home (People v Levan, 62 NY2d at144 [citation omitted], quoting United States v United States Dist. Court for EasternDist. of Mich., 407 US 297, 313 [1972]). "The curtilage of the home, defined as thearea immediately surrounding and associated with the home or the area that is related tothe intimate activities of the home—is part of the home itself" (People v Morris, 126 AD3d813, 814 [2015]; see United States v Dunn, 480 US 294, 301 [1987]; People v Theodore, 114 AD3d814, 816 [2014]).
Here, in entering the defendant's fenced-in rear yard by opening the gate and goingthrough it, the detective entered the curtilage of the defendant's home (see People vMorris, 126 AD3d at 814; People v Theodore, 114 AD3d at 816; Peoplev Quattrachi, 63 AD2d 655, 656 [1978], affd 47 NY2d 817 [1979]). ThePeople have failed to articulate any exigent circumstances justifying this intrusion andthe ensuing warrantless arrest and search (see People v Jenkins, 24 NY3d at 65;People v Morris, 126 AD3d at 814; People v Quattrachi, 63 AD2d at656). Accordingly, the Supreme Court should have granted that branch of the defendant'somnibus motion which was to suppress the video game consoles, video games, andnotebook recovered from the garage, and the money recovered from the defendant'sperson.
In light of our determination, we need not reach the defendant's remainingcontention. Rivera, J.P., Dickerson, Maltese and Barros, JJ., concur.