People v. Richardson, 1061 KA 13-01519.

• Decision Date: 02 October 2015
• Docket Number: 1061 KA 13-01519.
• Citation: 2015 N.Y. Slip Op. 07142,132 A.D.3d 1313,17 N.Y.S.3d 245
• Parties: The PEOPLE of the State of New York, Respondent, v. Rajsheem J. RICHARDSON, Defendant–Appellant. (Appeal No. 1.).
• Court: New York Supreme Court — Appellate Division

132 A.D.3d 1313

17 N.Y.S.3d 245

2015 N.Y. Slip Op. 07142

The PEOPLE of the State of New York, Respondent

v.Rajsheem J. RICHARDSON, Defendant–Appellant. (Appeal No. 1.).

1061 KA 13-01519.

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

Oct. 2, 2015.

Law Offices of Joseph D. Waldorf, P.C., Rochester (Joseph D. Waldorf of Counsel), for Defendant–Appellant.

Cindy F. Intschert, District Attorney, Watertown (Harmony Healy of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND VALENTINO, JJ.

OpinionMEMORANDUM:

In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ) and, in appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the third degree (id. ) involving a separate incident. County Court sentenced defendant to concurrent determinate terms of incarceration.

Contrary to defendant's contention in appeal No. 1, the court properly refused to suppress evidence, i.e., cocaine, seized from an apartment that he leased as a tenant. It is undisputed that the police entered the apartment without a warrant but that no search was conducted until a warrant was obtained. We conclude that the court properly determined that the police had probable cause to believe that a crime was being committed in the apartment and that exigent circumstances existed for the warrantless entry into the apartment (see generally People v. McBride, 14 N.Y.3d 440, 445, 902 N.Y.S.2d 830, 928 N.E.2d 1027, cert. denied 562 U.S. 931, 131 S.Ct. 327, 178 L.Ed.2d 212 ).

The police received a complaint that there was a strong odor of marijuana coming from a certain apartment, and that the odor was causing the complainant's children to feel ill. In response, a police officer knocked on the door of the apartment to investigate whether it was the source of the odor. The door was opened by a man (codefendant) who was known to the officer. When the officer told codefendant that he needed to talk to him about the odor of marijuana, which was much stronger after the door was opened, codefendant tried to slam the door, and the officer prevented him from doing so by placing his foot in the threshold. He and other officers thereafter entered the apartment, and he observed two other occupants and what appeared to be a large amount of cocaine on the kitchen counters. Defendant was not at the apartment. The officer left the apartment to obtain a warrant and, after doing so, the evidence was seized and the occupants were arrested.

Less than two hours before he entered defendant's apartment, the same officer was conducting surveillance of the apartment building for suspected drug trafficking, and he observed defendant enter the building by a door that led to the apartment. Shortly thereafter, the officer observed a man known to him to have a revoked driver's license exit the building from the door by which defendant entered. After the man drove away, the officer arrested him for unauthorized operation of a motor vehicle, and the man told the officer that he had purchased cocaine from codefendant, whom he referred to by a nickname, at an apartment that matched the location of the apartment leased by defendant. The man was thereafter picked up at the scene of his arrest by the mother of defendant's child, a person also known to the officer.

The officer testified that he did not seek a search warrant before knocking on the door because he was not “100% certain” that the odor was emanating from the apartment, and because the man he arrested refused to cooperate with respect to a warrant application, and he did not consider the man to be a sufficiently reliable source for purposes of seeking a warrant.

The court properly determined that the police had the right to knock on the door to investigate the complaint of the odor of marijuana (see People v. Kozlowski, 69 N.Y.2d 761, 762–763, 513 N.Y.S.2d 101, 505 N.E.2d 611, rearg. denied 69 N.Y.2d 985, 516 N.Y.S.2d 1028, 509 N.E.2d 363 ; cf. Florida v. Jardines, ––– U.S. ––––, 133 S.Ct. 1409, 1414–1415, 185 L.Ed.2d 495 ). After codefendant opened the door, the officer then had probable cause to believe both that there was marijuana in the apartment, based upon the strong odor that emanated therefrom, and that codefendant had sold cocaine to the man the officer had arrested. The court properly determined that exigent circumstances arose when codefendant attempted to slam the door inasmuch as it “is well known that persons who engage in drug trafficking will often attempt to dispose of the narcotics or escape” (People v. Brown, 274 A.D.2d 941, 942, 710 N.Y.S.2d 504, affd. 95 N.Y.2d 942, 722 N.Y.S.2d 464, 745 N.E.2d 383 ; see People v. Ellison, 46 A.D.3d 1341, 1343, 848 N.Y.S.2d 499, lv. denied 10 N.Y.3d 1062, 860 N.Y.S.2d 488, 890 N.E.2d 251 ). “Courts have long recognized that the Fourth Amendment is not violated every time police enter a private premises without a warrant. Indeed, though warrantless entries into a home are ‘presumptively unreasonable’ ..., ‘[t]he touchstone of the Fourth Amendment is reasonableness'—not the warrant requirement” (People v. Molnar,

98 N.Y.2d 328, 331, 746 N.Y.S.2d 673, 774 N.E.2d 738 ). We conclude that, here, both probable cause...