| People v Williams |
| 2017 NY Slip Op 00329 [146 AD3d 906] |
| January 18, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Teiquawn Williams, Appellant. |
Lynn W.L. Fahey, New York, NY (Joshua M. Levine of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John Castellano, JohnnetteTraill, Ellen C. Abbot, and Christopher J. Blira-Koessler of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Knopf, J.), rendered May 16, 2013, convicting him of assault in the second degree,criminal possession of a weapon in the third degree (two counts), and criminalpossession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.The appeal brings up for review an order of the same court (Aloise, J.) dated June 20,2012, which, after a hearing, denied that branch of the defendant's omnibus motionwhich was to suppress physical evidence.
Ordered that the judgment is modified, on the law, (1) by vacating the convictions ofcriminal possession of a weapon in the third degree, vacating the sentences imposedthereon, and dismissing those counts of the indictment, and (2) by reducing theconviction of assault in the second degree to assault in the third degree and vacating thesentence imposed thereon; as so modified, the judgment is affirmed, that branch of thedefendant's omnibus motion which was to suppress physical evidence is granted, theorder dated June 20, 2012, is modified accordingly, and the matter is remitted to theSupreme Court, Queens County, for sentencing on the conviction of assault in the thirddegree.
The defendant was convicted, after a jury trial, of assault in the second degree,criminal possession of a weapon in the third degree (two counts), and criminalpossession of a weapon in the fourth degree. On appeal, the defendant contends that theSupreme Court should have granted that branch of his omnibus motion which was tosuppress physical evidence that was recovered in a warrantless search of his home andhis backyard. The defendant also contends that his conviction of assault in the seconddegree should be reversed since the People failed to establish that the complainantsuffered physical injury, and that certain remarks made by the prosecutor duringsummation deprived him of a fair trial.
The following testimony was adduced at a Mapp hearing (see Mapp vOhio, 367 US 643 [1961]). On the morning of the incident giving rise to thedefendant's indictment and convictions, police officers responded to a report of an assaultin progress with a possible firearm. When they arrived at the location, the defendant,upon seeing the police officers, ran into a residence. The complainant told the officersthat the defendant had assaulted him with his fist and a miniature bat, and had threatenedhim with a metal pipe and a gun. When the police approached the door of the [*2]residence into which the defendant had run, the defendant'smother, who was standing outside, informed them that the defendant was in the residencewith his wife and children. Finding the door closed and locked, the police kicked thedoor in. Immediately upon entering, the police saw the defendant and handcuffed him.Officers cleared the first floor of the house, and the children were safeguarded in a rearbedroom. An officer recovered a pipe from the landing of the stairway to the basementand a miniature bat from the backyard. While the first floor was being cleared, adetective and another officer searched the basement, but did not find any people orweapons. After they returned to the first floor, their sergeant ordered them to search thebasement again to make sure they "didn't miss anything." During this second search, thedetective located a firearm and magazine in a black bag inside the tank of the toilet bowlin the basement bathroom. The complainant and a witness identified the pipe, the bat,and the gun as the weapons the defendant had during the assault. In an omnibus motion,the defendant moved, inter alia, to suppress physical evidence, specifically the gun. Thehearing court denied that branch of the motion, finding that the search of the house andthe seizure of the gun were justified under the emergency doctrine, and that the searchdid not exceed the scope and duration of the emergency.
As an initial matter, the People are correct that the defendant's suppressioncontentions are only preserved with respect to the gun, which was the basis for hisconvictions of criminal possession of a weapon in the third degree, and not with respectto the bat, which was the basis for his conviction of criminal possession of a weapon inthe fourth degree. Although the defendant moved in his omnibus motion to suppress "thephysical evidence," he indicated in his motion papers that he was specifically moving tosuppress the gun. In addition, in his posthearing memorandum, the defendant onlyargued that the secondary search that resulted in the recovery of the gun was illegal, andthat the gun should be suppressed. Moreover, although the hearing court denied thedefendant's motion to suppress "the physical evidence," the only evidence discussed inthe court's order was the gun. Since the defendant failed to raise the issue that thebackyard was within the curtilage of his home, and failed to make any arguments beforethe hearing court relating to the search of the backyard and the seizure of the bat, hiscontention that the bat should have been suppressed is unpreserved for appellate review(see People v Vann, 92AD3d 702, 703 [2012]; People v Jones, 62 AD3d 902, 902 [2009]; People vDantze, 283 AD2d 438, 438 [2001]), and we decline to reach the issue in theexercise of our interest of justice jurisdiction.
However, we agree with the defendant that the hearing court should have suppressedthe gun. Although "warrantless entries into a home are 'presumptivelyunreasonable' " (People v Molnar, 98 NY2d 328, 331 [2002], quotingPayton v New York, 445 US 573, 586 [1980]), a warrantless search and seizurein a protected area may be lawful under some circumstances pursuant to the emergencydoctrine (see People v Mitchell, 39 NY2d 173, 177-178 [1976]; People v Rossi, 99 AD3d947, 949 [2012], affd 24 NY3d 968 [2014]). The emergency exception"sanctions warrantless searches and seizures in circumstances presenting an immediatedanger to life or property" (People v Calhoun, 49 NY2d 398, 403 [1980]; seePeople v Mitchell, 39 NY2d at 178; People v Mormon, 100 AD3d 782, 783 [2012]). "Thisexception must be narrowly construed because it is susceptible of abuse and may be usedto validate an otherwise unlawful arrest or seizure" (People v Mormon, 100AD3d at 783 [internal quotation marks omitted]; see People v Guins, 165 AD2d549, 552 [1991]). The People have the burden of justifying the warrantless search(see People v Hodge, 44 NY2d 553, 557 [1978]; People v Mormon, 100AD3d at 783; People vLiggins, 64 AD3d 1213, 1215 [2009]; People v Fravel, 35 AD3d 1148, 1150 [2006]). Moreover,the scope and duration of the search must be limited by, and reasonably related to, theexigencies of the situation (see Mincey v Arizona, 437 US 385, 393 [1978];People v Knapp, 52 NY2d 689, 696 [1981]; People v Dillon, 44 AD3d 1068, 1070 [2007]).
Here, the initial entry by the police into the defendant's home and the initial searchfor occupants and weapons was justified under the emergency doctrine (see People v Timmons, 54AD3d 883, 884 [2008]; People v Bower, 27 AD3d 1122, 1124 [2006]; People vParker, 299 AD2d 859, 860 [2002]). However, once the police had the defendant inhandcuffs and had secured all of the occupants of the home in the rear bedroom, theemergency had abated (seePeople v Jenkins, 24 NY3d 62, 65 [2014]; People v Knapp, 52 NY2d at696-697). As such, the second search of the basement exceeded the duration of theemergency (see People v Jenkins, 24 NY3d at 65; cf. People v Stanislaus-Blache,93 AD3d 740, 742 [2012]). Contrary to the People's contention, the police wereaware, prior to commencing the [*3]second search, thatthe children were all safeguarded (cf. People v Rossi, 99 AD3d at 950-951).Accordingly, the hearing court should have granted that branch of the defendant's motionwhich was to suppress the gun. Without that evidence, there could not be sufficientevidence to prove the defendant's guilt of two counts of criminal possession of a weaponin the third degree, and those counts of the indictment must be dismissed (see Peoplev Jenkins, 24 NY3d at 66; People v Miranda-Hernandez, 106 AD3d 838, 839 [2013];People v Carmichael, 92AD3d 687, 688 [2012]).
Turning to the defendant's contention that the evidence was legally insufficient tosupport his conviction of assault in the second degree, we find that the evidence, viewedin the light most favorable to the prosecution (see People v Contes, 60 NY2d620, 621 [1983]), was legally insufficient to establish the defendant's guilt of this crimebecause the complainant did not suffer a "physical injury . . . by means of. . . a dangerous instrument" (Penal Law § 120.05 [2];see Penal Law § 10.00 [9], [13]). The complainant testified that thedefendant punched him on the left side of his face and hit him once above his righteyebrow with a miniature bat. The hit from the bat caused a "small cut" on his head thatwas treated at the scene with a piece of gauze, and he did not receive any further medicaltreatment for the head laceration. He testified that he experienced pain and swelling overhis eye for about a week, and that his eye was bloodshot for about two weeks, but he didnot testify that these conditions limited or diminished his ability to use his eye. Underthese circumstances, there was insufficient evidence from which a jury could infer thatthe complainant suffered substantial pain or impairment of physical condition as a resultof the defendant's use of the bat (see People v Boney, 119 AD3d 701, 702 [2014]; People v Taylor, 83 AD3d1105, 1106 [2011]; Peoplev Baksh, 43 AD3d 1072, 1073-1074 [2007]; People v Briggs, 285 AD2d651, 652 [2001]; People v Cheeks, 161 AD2d 657, 657 [1990]). The injuries tothe complainant's jaw and his difficulty chewing and yawning resulted from thedefendant punching the complainant in the face with his fist, and not from his use of thebat. Thus, those injuries could not establish the defendant's guilt of assault in the seconddegree under Penal Law § 120.05 (2) (see People v Owusu, 93NY2d 398, 399 [1999]). However, such evidence was legally sufficient to establish thedefendant's guilt of assault in the third degree (see People v Chiddick, 8 NY3d 445, 447 [2007]; People v Rose, 120 AD3d593, 594 [2014]; People vGomez, 43 AD3d 763, 763 [2007]). Accordingly, we modify the judgment byreducing the defendant's conviction of assault in the second degree to assault in the thirddegree, and we remit the matter to the Supreme Court, Queens County, for sentencing onthe conviction of assault in the third degree (see People v Kassebaum, 95 NY2d611, 618 [2001]; People vMcElroy, 139 AD3d 980, 982 [2016]; People v Ekwegbalu, 131 AD3d 982, 984 [2015]; People v Ragguete, 120 AD3d717, 718 [2014]).
The defendant's contention that certain comments made by the prosecutor during hersummation were improper and deprived him of a fair trial is unpreserved for appellatereview (see CPL 470.05 [2]; People v McMillan, 130 AD3d 651, 654 [2015], lvgranted 26 NY3d 1090 [2015]; People v Johnson, 127 AD3d 1234, 1234 [2015]; People v Jeudy, 115 AD3d982, 983 [2014]). In any event, the challenged remarks were fair comment on theevidence and the reasonable inferences to be drawn therefrom, were a fair response toarguments and issues raised by the defense, and did not deprive the defendant of a fairtrial (see People v Hawley,112 AD3d 968, 969 [2013]; People v McGowan, 111 AD3d 850, 851 [2013];People v McHarris, 297 AD2d 824, 824 [2002]).
In light of our determination, we need not reach the defendant's remainingcontentions. Leventhal, J.P., Cohen, Miller and Connolly, JJ., concur.