People v. Ellison, Jr.

• Decision Date: 21 December 2007
• Docket Number: KA 04-01547.
• Citation: 848 N.Y.S.2d 499,46 A.D.3d 1341,2007 NY Slip Op 10204
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ROY ELLISON, JR., Appellant.
• Court: New York Supreme Court — Appellate Division

46 A.D.3d 1341

848 N.Y.S.2d 499

2007 NY Slip Op 10204

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ROY ELLISON, JR., Appellant.

KA 04-01547.

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

Decided December 21, 2007.

Appeal from a judgment of the Supreme Court, Monroe County (Joseph D. Valentino, J.; suppression hearing Kenneth R. Fisher, J.), rendered June 14, 2004. The judgment convicted defendant, upon a jury verdict, of criminal possession of a controlled substance in the third degree and criminal sale of a controlled substance in the third degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously reversed on the law, that part of the motion seeking to suppress physical evidence is granted and a new trial is granted on counts one and two of the indictment.

Memorandum:

Defendant appeals from a judgment convicting him, upon a jury verdict, of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]) and criminal sale of a controlled substance in the third degree (§ 220.39 [1]). The facts are essentially undisputed. An undercover officer met an individual on the street outside defendant's small studio apartment, and the undercover officer was taken into defendant's apartment by that individual and purchased four $10 bags of cocaine. While inside the apartment, the officer observed 20 to 30 small clear plastic bags of what appeared to be cocaine on a coffee table. After returning to the same street corner, approximately 60 to 80 feet from the front door of defendant's apartment, the individual who assisted the undercover officer in the purchase of the drugs was immediately taken into custody by officers in a marked police vehicle. Approximately 10 minutes later, the police executed a "breach and hold" operation by forcibly opening the door to defendant's apartment with a battering ram and securing the individuals inside, including defendant, until a search warrant could be obtained. When the undercover officer notified the other officers at defendant's apartment that a search warrant had been obtained, but before he had returned to defendant's apartment with the warrant, the other officers began to search defendant's apartment. They found five small bags of cocaine, the $40 in prerecorded buy money used by the undercover officer, $110 in cash, glassine envelopes, defendant's photo identification and mail bearing defendant's name.

Defendant contends that Supreme Court erred in denying that part of his omnibus motion seeking to suppress the physical evidence seized from his apartment because the warrantless entry was not justified by exigent circumstances. We reject that contention. After the undercover officer purchased the four bags of cocaine, the police knew that an additional amount of cocaine was in the apartment and that the apartment was occupied by at least three persons. Defendant's accomplice was arrested only 60 to 80 feet from the front door of the apartment which had windows facing the area where he was taken into custody. It "is well known that persons who engage in drug trafficking will often attempt to dispose of the narcotics or to escape" (People v Brown, 274 AD2d 941, 942 [2000], affd 95 NY2d 942 [2000]), and thus the police could have reasonably believed that the individuals in the apartment would dispose of the additional...