People v. Gordon

• Decision Date: 19 December 1983
• Citation: 98 A.D.2d 781,470 N.Y.S.2d 14
• Parties: The PEOPLE, etc., Respondent, v. Eddie GORDON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 14

470 N.Y.S.2d 14

98 A.D.2d 781

The PEOPLE, etc., Respondent, v. Eddie GORDON, Appellant.

Supreme Court, Appellate Division,

Second Department.

Dec. 19, 1983.

William E. Hellerstein, New York City (Brent K. Olsson, New York City, of counsel), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Michael Gore and Sarah G. Noll, Asst. Dist. Attys., Brooklyn, of counsel), for respondent.

Before GIBBONS, J.P., and THOMPSON, WEINSTEIN and BROWN, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered July 29, 1977, convicting him of manslaughter in the first degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of defendant's motion to suppress physical evidence.

By order dated February 5, 1979, this court, citing People v. Payton, 45 N.Y.2d 300, 408 N.Y.S.2d 395, 380 N.E.2d 224, affirmed the judgment (People v. Gordon, 67 A.D.2d 931, 413 N.Y.S.2d 29). Leave to appeal to the Court of Appeals was denied (People v. Gordon, 46 N.Y.2d 1080, 416 N.Y.S.2d 1034, 390 N.E.2d 309). On April 21, 1980, the United States Supreme Court vacated this court's order of affirmance and remitted the case to us for further consideration in light of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639, revg. People v. Payton, 45 N.Y.2d 300, 408 N.Y.S.2d 395, 380 N.E.2d 224, supra ), decided subsequent to the affirmance by this court (Gordon v. New York, 446 U.S. 903, 100 S.Ct. 1827, 64 L.Ed.2d 255). On remittitur, this court affirmed defendant's judgment of conviction holding that Payton v. New York (supra) should not be applied retroactively (People v. Gordon, 80 A.D.2d 647, 436 N.Y.S.2d 322). Leave to appeal to the Court of Appeals was denied (People v. Gordon, 54 N.Y.2d 685). Subsequently, the United States Supreme Court ruled in United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 that Payton v. New York (supra) was to be retroactively applied to all cases pending on direct appeal when it was decided. By order dated October 12, 1983 this court granted defendant's motion for reargument.

Case remitted to Criminal Term to hear and report on whether there existed exigent circumstances to support the warrantless arrest of the defendant, and appeal held in abeyance in the interim. Criminal Term shall file its report with all convenient speed.

Although it found that a warrantless and nonconsensual entry into defendant's girlfriend's apartment occurred in the case at bar, the hearing court declined to suppress the physical evidence seized on the ground that probable cause existed to arrest defendant. Since that time, the United States Supreme Court has held that, in the absence of exigent circumstances, the police may not arrest a person in his home without a warrant (Payton v. New York, supra ), and further that Payton (supra) should be applied retroactively to cases such as the case at bar.

The...