People v. Kelly

• Decision Date: 04 May 1999
• Citation: 689 N.Y.S.2d 470
• Parties: 1999 N.Y. Slip Op. 3985 The PEOPLE of the State of New York, Respondent, v. Clinton KELLY, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 470

689 N.Y.S.2d 470

1999 N.Y. Slip Op. 3985

The PEOPLE of the State of New York, Respondent, v. Clinton KELLY, Defendant-Appellant.

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

May 4, 1999.

Brian O'Donoghue, for Respondent.

Ronald Alfano, for Defendant-Appellant.

TOM, J.P., WALLACH, LERNER and RUBIN, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Harold Beeler, J., at suppression hearing; Bernard Fried, J., at jury trial and sentence), rendered April 15, 1997, convicting defendant of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4 1/2 to 9 years, unanimously affirmed.

Defendant's suppression motion was properly denied. The arresting officer was entitled to rely on information radioed by the purchasing undercover officer that the seller had entered the subject apartment to access her drug supply before consummating the sale (see, People v. Landy, 59 N.Y.2d 369, 375, 465 N.Y.S.2d 857, 452 N.E.2d 1185). In light of the fact that the seller had resumed her position in the lobby's vestibule, the arresting officer clearly had probable cause to believe that crack cocaine was still being sold from the apartment, and exigent circumstances, including the danger that drugs might be disposed of by an occupant of the apartment, justified a warrantless entry (see, People v. Clements, 37 N.Y.2d 675, 376 N.Y.S.2d 480, 339 N.E.2d 170, cert. denied 425 U.S. 911, 96 S.Ct. 1507, 47 L.Ed.2d 762), as did the necessity of conducting a protective sweep, given the close proximity of the apartment (see, People v. Febus, 157 A.D.2d 380, 556 N.Y.S.2d 1000, appeal dismissed 76 N.Y.2d 898, 561 N.Y.S.2d 560, 562 N.E.2d 885). Moreover, even if justification for entry did not already exist, the warning shouted by the seller and clearly directed at the apartment, as the arresting officer merely approached the apartment door, created exigent circumstances which we do not find to be police-created (compare, People v. Levan, 62 N.Y.2d 139, 476 N.Y.S.2d 101, 464 N.E.2d 469).

The verdict was based on legally sufficient evidence. There was ample evidence of defendant's possession of the 34 vials of crack cocaine, found within his reach in the apartment he shared with the seller, and ample evidence of intent to sell was provided by the number and packaging of the vials, as well as the surrounding circumstances. The use of the apartment to store drugs ...