People v. Ferguson

• Citation: 24 N.Y.S.3d 442,2016 N.Y. Slip Op. 00717,136 A.D.3d 1070
• Decision Date: 04 February 2016
• Docket Number: 106856.
• Parties: The PEOPLE of the State of New York, Respondent, v. Patrick FERGUSON, Appellant.
• Court: New York Supreme Court — Appellate Division

136 A.D.3d 1070
24 N.Y.S.3d 442
2016 N.Y. Slip Op. 00717

The PEOPLE of the State of New York, Respondent,
v.
Patrick FERGUSON, Appellant.

106856.

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

Feb. 4, 2016.

24 N.Y.S.3d 443

Marshall Nadan, Kingston, for appellant.

D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

CLARK, J.

136 A.D.3d 1070

Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered May 15, 2013, upon a verdict convicting defendant of the crime of robbery in the first degree.

On May 20, 2012 at approximately 9:20 p.m., Officer Benny Reyes of the Kingston Police Department responded to 190 Tremper Avenue in the City of Kingston, Ulster County to investigate allegations of an assault and robbery. The victim of the alleged crimes, who had blood on his clothing, told Reyes

136 A.D.3d 1071

that he was walking down the street when two people, one of whom was defendant, forced him at knife point into the first-floor apartment located at that address. The victim further indicated to Reyes that a struggle ensued during which defendant was injured by the knife.

At the alleged crime scene, police officers' knocks went unanswered and their attempts to see through the windows into the apartment were unsuccessful. After examining the interior common area and the exterior of the building without finding any blood, Reyes and two other officers obtained a key from the landlord—who indicated that the apartment was rented to defendant and that he had heard “disturbing sounds” coming from inside earlier that day. They entered the apartment to conduct a cursory sweep search to determine if anyone was injured inside. Finding no one, the officers left the apartment after approximately two minutes without seizing any evidence. Thereafter, one of the officers applied for a search warrant executable at any time of the day or night, while other police officers secured each entrance of the apartment. After the search warrant application was granted permitting an all-hours search, the warrant was executed at approximately 12:50 a.m., which resulted in the seizure of certain physical evidence implicating defendant in the crimes.

Defendant and a codefendant were thereafter charged by a three-count indictment

24 N.Y.S.3d 444

with robbery in the first degree, unlawful imprisonment in the first degree and robbery in the third degree.¹ Following a suppression hearing, County Court denied defendant's motion to suppress the property seized as a result of the middle of the night execution of the search warrant. Defendant was thereafter convicted by a jury of one count of robbery in the first degree and was sentenced to 10 years in prison followed by five years of postrelease supervision. Arguing only that there did not exist any basis for the middle of the night search of the apartment and, as such, County Court erred in denying his motion to suppress, defendant appeals. We disagree and, therefore, affirm.

Generally, search warrants are to be “executed only between the hours of 6:00 [a.m.] and 9:00 [p.m.]” (CPL 690.302 ). However, a search after 9:00 p.m. for the purpose of seizing designated property may be authorized when the application for the search warrant alleges that “there is reasonable cause to believe that (i) [the warrant] cannot be executed between

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the hours of 6:00 [a.m.] and 9:00 [p.m.], or (ii) the property sought will be removed or destroyed if not seized forthwith” (CPL 690.354 [a][i], [ii] [emphasis added]; see People v. Sherwood, 79 A.D.3d 1286, 1287–1288, 915 N.Y.S.2d 171 2010 ). When undertaking to review the validity of a search warrant, “the critical facts and circumstances for the reviewing court are those which were made known to the issuing [court] at the time the warrant application was determined,”...