People v. Rosario

Decision Date14 January 1992
Citation179 A.D.2d 442,579 N.Y.S.2d 12
PartiesThe PEOPLE of the State of New York, Respondent, v. Jose ROSARIO, Defendant-Appellant.
CourtNew York Supreme Court — Appellate Division

Before SULLIVAN, J.P., and MILONAS, ELLERIN and KUPFERMAN, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County (Frank Diaz, J.), rendered August 4, 1989, convicting defendant after a jury trial, of two counts of rape in the first degree, rape in the second degree and sexual abuse in the second degree, and sentencing him to two concurrent terms of imprisonment of from 6 to 18 years for the first degree rape conviction, to run consecutively to concurrent terms of imprisonment of 2 to 6 years for the second degree rape and one year for the sexual abuse, unanimously affirmed.

Police officers went to defendant's apartment immediately upon being told by two young girls that defendant had raped them. One of the victims knocked on the door while the officer remained out of sight. Defendant opened the door and stated that he had another girl inside. The police officers identified themselves and arrested defendant at the doorway of his apartment. Defendant, who wore nothing above the waist, was told to get a shirt. The police officers followed defendant into his apartment as he went to retrieve his shirt. An adult woman was inside the apartment. Informed by a police officer at the precinct that he was being charged with rape, defendant made an incriminating statement.

Defendant's statement was admissible since his arrest at the doorway of his apartment did not implicate Payton rights. (see, People v. Nonni, 141 A.D.2d 862, 530 N.Y.S.2d 205, lv. denied 72 N.Y.2d 960, 534 N.Y.S.2d 673, 531 N.E.2d 306, rearg. denied 73 N.Y.2d 788, 536 N.Y.S.2d 748, 533 N.E.2d 678). In any event, assuming the existence of a Payton issue, the hearing court correctly concluded that defendant's Payton rights were not violated since the officers had his consent to follow him into the apartment to retrieve his shirt (People v. Taylor, 111 A.D.2d 520, 489 N.Y.S.2d 394). Furthermore, since defendant announced that he had another girl in the apartment, there was an objective reasonable basis for the hearing court to conclude that there were exigent circumstances (People v. Anderson, 127 A.D.2d 774, 512 N.Y.S.2d 168).

The sentence imposed was not excessive. Defendant took advantage of the poverty of young girls to satisfy his own deviant sexual desires.

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15 cases
  • People v. Garvin
    • United States
    • New York Court of Appeals Court of Appeals
    • October 24, 2017
    ...619 N.Y.S.2d 71 [2d Dept.1994] ; People v. Min Chul Shin, 200 A.D.2d 770, 607 N.Y.S.2d 369 [2d Dept.1994] ; People v. Rosario, 179 A.D.2d 442, 579 N.Y.S.2d 12 [1st Dept.1992] ; People v. Lewis, 172 A.D.2d 775, 569 N.Y.S.2d 152 [2d Dept.1991] ; People v.Marzan, 161 A.D.2d 416, 555 N.Y.S.2d 3......
  • People v. Garvin
    • United States
    • New York Court of Appeals Court of Appeals
    • October 24, 2017
    ...619 N.Y.S.2d 71 [2d Dept.1994] ; People v. Min Chul Shin, 200 A.D.2d 770, 607 N.Y.S.2d 369 [2d Dept.1994] ; People v. Rosario, 179 A.D.2d 442, 579 N.Y.S.2d 12 [1st Dept.1992] ; People v. Lewis, 172 A.D.2d 775, 569 N.Y.S.2d 152 [2d Dept.1991] ; People v.Marzan, 161 A.D.2d 416, 555 N.Y.S.2d 3......
  • People v. Hart, CR-2182-19
    • United States
    • New York City Court
    • December 23, 2019
    ...materials to the defendant.Motion to Compel Disclosure of Rosario MaterialsThe defendant's motion for disclosure of People v. Rosario , 179 A.D.2d 442, 579 N.Y.S.2d 12 materials is GRANTED , to the extent that the People are directed to provide such Rosario materials within the time require......
  • People v. Gonzales
    • United States
    • New York Supreme Court — Appellate Division
    • October 2, 2013
    ...A.D.2d 539, 539, 619 N.Y.S.2d 71 [the defendant's arrest “at the doorway of his apartment did not violate Payton ”]; People v. Rosario, 179 A.D.2d 442, 442, 579 N.Y.S.2d 12 [“arrest at the doorway of his apartment did not implicate Payton rights”]; People v. Anderson, 146 A.D.2d 638, 639, 5......
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