| People v Bunce |
| 2016 NY Slip Op 05383 [141 AD3d 536] |
| July 6, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Appellant, v Joseph Bunce, Respondent. |
Thomas J. Spota, District Attorney, Riverhead, NY (Glenn Green of counsel), forappellant.
Laurette Mulry, Riverhead, NY (Kalina R. Lovell of counsel), for respondent.
Appeal by the People from an order of the County Court, Suffolk County (Toomey,J.), dated September 11, 2014, which, after a hearing, granted those branches of thedefendant's omnibus motion which were to suppress physical evidence and his statementsto law enforcement officials.
Ordered that the order is reversed, on the law, those branches of the defendant'somnibus motion which were to suppress physical evidence and his statements to lawenforcement officials are denied, and the matter is remitted to the County Court, SuffolkCounty, for further proceedings on the indictment.
The defendant was charged with, among other things, criminal possession of aweapon in the second degree. In his omnibus motion, the defendant sought, inter alia, tosuppress a gun recovered from his residence by the police, as well as statements he madeto the police, on the ground that the police made a warrantless entry into his residencewithout consent or the existence of probable cause and exigent circumstances. After ahearing, the County Court granted those branches of the defendant's omnibus motion. Wereverse.
Contrary to the People's contention, they failed to establish the existence of exigentcircumstances (see People v Green, 103 AD2d 362, 363-364 [1984]) justifyingthe police officers' warrantless entry into the residence of the defendant and his mother.However, contrary to the County Court's determination, the evidence established that thepolice officers lawfully entered the residence with the consent of the defendant's mother."Where a person with ostensible authority consents to police presence on the premises,either explicitly or tacitly, the right to be secure against warrantless arrests in privatepremises as expressed in Payton v New York (445 US 573 [1980]) is notviolated" (People v Russo, 243 AD2d 658, 659 [1997]; see People v Read, 74 AD3d1245, 1246 [2010]). "[C]onsent can be established by conduct as well as words"(People v Gonzalez, 222 AD2d 453, 453 [1995]; see People v Satornino,153 AD2d 595, 595 [1989]; People v Davis, 120 AD2d 606, 606-607[1986]).
Here, the defendant's mother called 911, and two officers responded to the subjectresidence after receiving a radio dispatch of a violent domestic incident between amother and son. When the officers arrived at the location, the defendant's mother exitedthe residence and stated to [*2]the officers, in referenceto the defendant, who was then reentering the residence, "that's him. That's him. I don'twant him here." This conduct was sufficient to establish her consent to enter theresidence (see Matter of GilbertM., 127 AD3d 642, 642 [2015]; People v Brown, 234 AD2d 211, 213[1996], affd 91 NY2d 854 [1997]; People v Davis, 120 AD2d at 607;People v Taylor, 111 AD2d 520, 521 [1985]; People v James, 2001 NYSlip Op 40035[U], *8 [Sup Ct, Bronx County 2001]). Further, the defendant's motheralso effectively consented to the officers' entry and presence in the residence by failing toask them to leave or otherwise indicating that they did not have her permission to remain(see People v Gonzalez, 222 AD2d 453 [1995]; People v Schof, 136AD2d 578, 579 [1988]), and by restraining her dog to facilitate their entry into theresidence.
The parties' remaining contentions either are without merit or not properly before thisCourt (see CPL 470.15; People v Ingram, 18 NY3d 948, 949 [2012]; People v Falquez, 66 AD3d918, 918-919 [2009]).
Accordingly, the County Court should have denied those branches of the defendant'somnibus motion which were to suppress the gun he discarded after entering theresidence, as well as his statements to law enforcement officials. Mastro, J.P., Dickerson,Austin and Roman, JJ., concur.