| People v Junious |
| 2016 NY Slip Op 08754 [145 AD3d 1606] |
| December 23, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vMalquan R. Junious, Also Known as Pig, Appellant. |
Timothy P. Donaher, Public Defender, Rochester, the Abbatoy Law Firm, PLLC(David M. Abbatoy, Jr., of counsel), for defendant-appellant.
Malquan R. Junious, defendant-appellant pro se.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Victoria M. Argento, J.),rendered December 19, 2013. The judgment convicted defendant, upon a jury verdict, ofattempted assault in the first degree, criminal possession of a weapon in the third degreeand criminal possession of a weapon in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of attempted assault in the first degree (Penal Law §§ 110.00,120.10 [1]), criminal possession of a weapon in the third degree (§ 265.02[1]) and criminal possession of a weapon in the fourth degree (§ 265.01[4]). Defendant is convicted of firing a shotgun toward a woman, who was living withhis uncle in a house owned by defendant's grandmother, after defendant and his unclehad engaged in a physical altercation. We reject defendant's contention in his main andpro se supplemental briefs that the verdict on the attempted assault count is against theweight of the evidence. Viewing the evidence in light of the elements of the crime ofattempted assault in the first degree as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the evidence established that defendantintended to cause serious physical injury to the woman by means of a deadly weapon(see § 120.10 [1]), and that he engaged in conduct that tended toeffect the commission of the crime (see § 110.00), by firing theshotgun toward her. Even assuming, arguendo, that an acquittal would not have beenunreasonable on the ground that defendant's intended victim was his uncle and not thewoman, as he contends, we nevertheless conclude that the jury did not fail to give theevidence the weight it should be accorded (see generally People v Bleakley, 69NY2d 490, 495 [1987]). We therefore conclude that "the jury was justified in finding thedefendant guilty beyond a reasonable doubt" (Danielson, 9 NY3d at 348).
We also reject defendant's contention in his main and pro se supplemental briefs thatCounty Court erred in refusing to suppress the gun. The court credited the testimony ofthe police witnesses that, upon responding to a call of shots fired in a residence, severalpeople were outside the residence, some of the people directed the police to the rear ofthe house where the man with the gun had gone, one officer observed a man enter agarage and, when the police demanded that any occupants exit the garage, an unarmedman exited. The man who exited was defendant but had not yet been identified as theshooter. One of the police witnesses testified that they entered the garage to see if therewas anyone else inside who might be armed or injured. While walking in the loft of thegarage, that officer saw a portion of the gun protruding from the eaves.
It is axiomatic that "a warrantless search of an individual's home is per seunreasonable and hence unconstitutional" in the absence of exceptional circumstances(People v Knapp, 52 NY2d 689, 694 [1981]). We conclude that the Peopleestablished the requisite elements of the emergency doctrine (see People v Dallas, 8 NY3d890, 891 [2007], citing People v Mitchell, 39 NY2d 173, 177-178 [1976],cert denied 426 US 953 [1976]). First, the police had reasonable grounds tobelieve that there was an emergency at hand and that there was an immediate need fortheir assistance for the protection of life (see Dallas, 8 NY3d at 891)." '[T]he requirement of reasonable grounds to believe that an emergency existedmust be applied by reference to the circumstances then confronting the officer[s],including the need for a prompt assessment of sometimes ambiguous informationconcerning potentially serious consequences' " (People v Gibson, 117 AD3d1317, 1319 [2014], affd 24 NY3d 1125 [2015]). Based upon the informationavailable to the police, they were aware that there was a suspect, not yet identified, whocould be armed and was willing to use a gun (see People v Stevens, 57 AD3d 1515, 1515-1516 [2008],lv denied 12 NY3d 822 [2009]). Second, the People established through thetestimony of a police witness that they entered the garage to determine whether therewere any armed or injured occupants and thus established that the search was notprimarily motivated by an intent to arrest and seize evidence (see Dallas, 8 NY3dat 891; Stevens, 57 AD3d at 1516; cf. People v Doll, 21 NY3d 665, 671 n [2013], reargdenied 22 NY3d 1053 [2014], cert denied 572 US &mdash, 134 S Ct 1552[2014]). Third, based upon the information that the armed suspect had fled to the rear ofthe house, a police witness had observed a man enter the garage, and the man who exitedthe garage was not armed, there was a reasonable basis to associate the emergency withthe garage (see Dallas, 8 NY3d at 891; Stevens, 57 AD3d at 1515-1516).Thus, under the facts presented here, the police were not "constitutionally precluded fromconducting a protective sweep to ascertain whether any armed [or injured] persons wereinside" (Gibson, 117 AD3d at 1319-1320). The court therefore properly refusedto suppress the gun, which was in plain view (see generally People v Brown, 96NY2d 80, 88-89 [2001]).
By failing to seek a ruling on that part of his omnibus motion seeking to suppress thegun as the fruit of an illegal detention, defendant abandoned the contention in his pro sesupplemental brief that the gun should be suppressed on that ground (see People v Adams, 90 AD3d1508, 1509 [2011], lv denied 18 NY3d 954 [2012]). We reject defendant'sfurther contention in his pro se supplemental brief that he was denied his right to appearbefore the grand jury and thus that the court erred in denying his motion to dismiss theindictment. The record establishes that the People complied with their obligationpursuant to CPL 190.50 (5) (a) to give notice to defendant and his attorney of theirintention to present the matter to the grand jury, and defendant did not exercise his rightto give the District Attorney notice of his request to testify prior to the filing of theindictment (see id.).
We have reviewed defendant's remaining contention in the main and pro sesupplemental briefs and conclude that it is without merit. Present—Peradotto, J.P.,Carni, Curran, Troutman and Scudder, JJ.