People v. Gibson

117 A.D.3d 1317

986 N.Y.S.2d 660

2014 N.Y. Slip Op. 03877

The PEOPLE of the State of New York, Respondent,

v.John GIBSON, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

May 29, 2014.

John P.M. Wappett, Public Defender, Lake George (Bryan M. Racino of counsel), for appellant.

Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), for respondent.

Before: PETERS, P.J., STEIN, ROSE and EGAN JR., JJ.

PETERS, P.J.

Appeal from a judgment of the County Court of Warren County (Hall Jr., J.), rendered August 16, 2011, convicting defendant upon his plea of guilty of the crimes of criminal possession of a weapon in the third degree and menacing in the second degree.

Defendant was arrested and charged with criminal possession of a weapon in the third degree and menacing in the second degree after waving a gun at two taxicab drivers outside the door of his apartment. County Court denied defendant's motion to suppress a pellet gun seized from his apartment, concluding that probable cause existed for defendant's arrest and that the warrantless entry into his apartment was justified by the emergency doctrine. At the ensuing trial, prior to the close of the People's case, defendant pleaded guilty to the indictment. County Court sentenced him, as a persistent felony offender, to an aggregate prison term of 15 years to life. Defendant appeals.

Defendant's contention that count one of the indictment failed to adequately inform him of the nature of the accusations against him is without merit. Such count used the relevant statutory language to charge defendant with criminal possession of a weapon in the third degree and set forth additional information as to the date and location of the offense, thereby alleging “where, when and what” defendant purportedly did ( People v. Iannone, 45 N.Y.2d 589, 598, 412 N.Y.S.2d 110, 384 N.E.2d 656 [1978];seeCPL 200.50[7][a]; People v. Young, 100 A.D.3d 1186, 1188, 954 N.Y.S.2d 244 [2012],lv. denied21 N.Y.3d 1021, 971 N.Y.S.2d 503, 994 N.E.2d 399 [2013];People v. Perez, 93 A.D.3d 1032, 1034, 942 N.Y.S.2d 227 [2012],lv. denied19 N.Y.3d 1000, 951 N.Y.S.2d 476, 975 N.E.2d 922 [2012] ). Because the charged offense can be committed by possessing either an imitation pistol or a dangerous weapon ( seePenal Law §§ 265.01[2]; 265.02[1] ), the failure of the indictment to so specify did not render that count jurisdictionally inadequate ( see People v. Hagmann, 160 A.D.2d 1125, 1128, 553 N.Y.S.2d 908 [1990];People v. Nicholas, 35 A.D.2d 18, 20, 312 N.Y.S.2d 645 [1970];see also People v. Charles, 61 N.Y.2d 321, 327–328, 473 N.Y.S.2d 941, 462 N.E.2d 118 [1984] ).

We agree with County Court that exigent circumstances existed to justify the warrantless entry into defendant's apartment, and that the subsequent seizure of the gun in plain view was lawful. “Appraising a particular situation to determinewhether exigent circumstances justified a warrantless intrusion into a protected area presents difficult problems of evaluation and judgment. This difficulty is highlighted by the fact that Judges, detached from the tension and drama of the moment, must engage in reflection and hindsight in balancing the exigencies of the situation against the rights of the accused” ( People v. Mitchell, 39 N.Y.2d 173, 177, 383 N.Y.S.2d 246, 347 N.E.2d 607 [1976],cert. denied426 U.S. 953, 96 S.Ct. 3178, 49 L.Ed.2d 1191 [1976] ). Pursuant to the emergency exception to the warrant requirement, the police may make a warrantless entry into a protected area if three prerequisites are met: “(1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property. (2) The search must not be primarily motivated by intent to arrest and seize evidence. (3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched” ( id. at 177–178, 383 N.Y.S.2d 246, 347 N.E.2d 607).¹ The requisite reasonable grounds for the belief that an emergency exists must be based upon objective facts, rather than the subjective feelings of the police ( see id. at 178, 383 N.Y.S.2d 246, 347 N.E.2d 607;People v. Musto, 106 A.D.3d 1380, 1382, 966 N.Y.S.2d 263 [2013],lv. denied21 N.Y.3d 1007, 971 N.Y.S.2d 258, 993 N.E.2d 1281 [2013];People v. Greenleaf, 222 A.D.2d 838, 840, 634 N.Y.S.2d 892 [1995],lv. denied87 N.Y.2d 973, 642 N.Y.S.2d 202, 664 N.E.2d 1265 [1996] ).

At approximately 9:00 p.m. on an October night, police received a 911 dispatch that a male suspect was pointing a gun at two taxicab drivers outside a residence. Officers arrived at the scene within minutes and surrounded the building. They possessed no description of the perpetrator, learning only that the male suspect had entered the right-side door of the residence. As the police shone the spotlights of their vehicles at the building, an officer observed people moving in the windows on the second floor. Moments later—unprompted by any communications from or demands by the police—a man emerged from the right door of the building. He was instructed to get down on the ground, handcuffed and searched. No weapon was found on him, yet he denied that there was anyone else in the residence. With the right-hand door still open and its interior dark, one officer entered the residence, followed by another, to determine if someone inside was armed or injured.

In our view, the information known to law enforcement rendered it objectively reasonable for the officers to believe that the armed perpetrator could still be inside the building. Although the dissent stresses the fact that the subject building was a multi-family house, thus discounting the officer's observation of people on the second floor, the evidence adduced at the suppression hearing does not establish that the responding officers had any knowledge of the building's configuration. To the contrary, both the arresting officer and one of the officers who ultimately entered the apartment testified that, at that point in time, they were unaware of the layout of the building. While further investigation and consideration removed from the exigencies of the situation may have uncovered this fact, “the requirement of reasonable grounds to believe that an emergency existed must be applied by reference to the circumstances then confronting the officer, including the need for a prompt assessment of sometimes ambiguous information concerning potentially serious consequences” ( People v. Rodriguez, 77 A.D.3d 280, 291, 907 N.Y.S.2d 294 [2010],lv. denied15 N.Y.3d 955, 917 N.Y.S.2d 115, 942 N.E.2d 326 [2010] [internal quotation marks and citations omitted]; see People v. Calhoun, 49 N.Y.2d 398, 403, 426 N.Y.S.2d 243, 402 N.E.2d 1145 [1980] ). Under the circumstances presented, we are not willing to conclude that the police should have assumed that this individual was the perpetrator and were constitutionally precluded from conducting a protective sweep to ascertain whether any armed persons were inside ( see People v. Garcia, 27 A.D.3d 307, 307, 815 N.Y.S.2d 25 [2006],lv. denied6 N.Y.3d 894, 817 N.Y.S.2d 629, 850 N.E.2d 676 [2006];People v. Rivera, 257 A.D.2d 425, 426, 683 N.Y.S.2d 513 [1999],lv. denied93 N.Y.2d 901, 689 N.Y.S.2d 714, 711 N.E.2d 990 [1999];People v. Love, 204 A.D.2d 97, 98, 610 N.Y.S.2d 958 [1994],affd.84 N.Y.2d 917, 620 N.Y.S.2d 809, 644 N.E.2d 1365 [1994];People v. DePaula, 179 A.D.2d 424, 426, 579 N.Y.S.2d 10 [1992];cf. People v. Stevens, 57 A.D.3d 1515, 1516, 871 N.Y.S.2d 525 [2008],lv. denied12 N.Y.3d 822, 881 N.Y.S.2d 29, 908 N.E.2d 937 [2009] ).

As for the remaining two prongs of the emergency doctrine, the officers' testimony—which County Court found credible—established that entry into defendant's apartment was for the purpose of ascertaining whether a suspect or other victims were inside. The brevity of the sweep and the fact that the officers did not turn on the lights when they entered further support the finding that the primary motivation was not to conduct a search for evidence. Finally, the victims had identified the right door to the building as the one that the suspect had entered after waving the gun at them, and the officers therefore had a reasonable basis to associate defendant's apartment with the area to be searched. Accordingly, we find that the police were presented with exigent circumstances justifying their warrantless entry into defendant's home ( see People v. Mitchell, 39 N.Y.2d at 180, 383 N.Y.S.2d 246, 347 N.E.2d 607;People v. Musto, 106 A.D.3d at 1381–1383, 966 N.Y.S.2d 263;People v. Rossi, 99 A.D.3d 947, 949–950, 952 N.Y.S.2d 285 [2012],lv. granted20 N.Y.3d 1066, 962 N.Y.S.2d 618, 985 N.E.2d 928 [2013] ).

Once inside, the officers conducted a sweep of what was found to be a small, one bedroom apartment and determined that no one was present. As he was exiting, one officer observed a gun in a holster in a partially opened dresser drawer. While defendant questions this officer's testimony that his discovery of the weapon was inadvertent, County Court found such testimony to be credible, and we find no basis upon which to disturb that determination ( see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977];People v. Merritt, 96 A.D.3d 1169, 1170, 946 N.Y.S.2d 306 [2012],lv. denied19 N.Y.3d 1027, 953 N.Y.S.2d 561, 978 N.E.2d 113 [2012];People v. Everett, 96 A.D.3d 1105, 1106, 945 N.Y.S.2d 494 [2012],lv. denied19 N.Y.3d 996, 951 N.Y.S.2d 472, 975 N.E.2d 918 [2012] ). As this officer was lawfully in defendant's apartment pursuantto the emergency doctrine, the gun was in plain view as he was exiting and its incriminatory nature was readily apparent, seizure of that evidence was lawful ( see People v. Diaz, 81 N.Y.2d 106, 110, 595 N.Y.S.2d 940, 612 N.E.2d 298 [1993];People v. Spencer, 272 A.D.2d 682, 683, 708 N.Y.S.2d 488 [2000],lv. denied95 N.Y.2d 858, 714...