People v. Rossi

• Decision Date: 17 October 2012
• Citation: 2012 N.Y. Slip Op. 06979,99 A.D.3d 947,952 N.Y.S.2d 285
• Parties: The PEOPLE, etc., respondent, v. John ROSSI, appellant.
• Court: New York Supreme Court — Appellate Division

99 A.D.3d 947

952 N.Y.S.2d 285

2012 N.Y. Slip Op. 06979

The PEOPLE, etc., respondent,

v.John ROSSI, appellant.

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

Oct. 17, 2012.

Jillian S. Harrington, New York, N.Y., for appellant.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Laurie K. Gibbons and Kevin C. King of counsel), for respondent.

PETER B. SKELOS, J.P., DANIEL D. ANGIOLILLO, ANITA R. FLORIO, ARIEL E. BELEN, and CHERYL E. CHAMBERS, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Carter, J.), rendered January 11, 2011, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing pursuant to a stipulation in lieu of motions (Berkowitz, J.), of the suppression of a handgun.

ORDERED that the judgment is affirmed.

The defendant challenges the lawfulness of a search of the backyard of his house, where a police officer discovered a loaded firearm. At the suppression hearing, four police officers and two detectives testified concerning their respective actions at the defendant's house on July 11, 2009. The four officers responded at different times between 5:00 A.M. and 5:10 A.M., all within minutes of a 911 emergency telephone call concerning a male who had been shot at that location.

The first officer to arrive, Police Officer Robert Allen, spoke with the defendant's wife, who was still on the phone with the 911 operator in front of the house. She stated that her husband had shot himself in the hand and was inside the house; she did not know where the gun was. Officer Allen further testified that he “understood” there were children in the house, but he did not indicate the source of that understanding. Officer Allen immediately went inside and found the defendant at the end of a hallway in a bedroom doorway. The defendant was bleeding profusely from a serious hand wound and was not entirely coherent.

Police Officer Ralph Swanson arrived in a separate vehicle immediately after Officer Allen and saw him running into the house. Officer Swanson ran inside, not stopping to speak with the defendant's wife. Officers Allen and Swanson, with their guns drawn, ordered the defendant to come toward them down the hallway into the living room, which was by the front door; the defendant complied. On the floor of the living room, Officer Swanson holstered his weapon and frisked the defendant, but did not find the gun. The officers asked what had happened, and the defendant said he had been on the couch when he accidentally shot himself. The two officers repeatedly asked where the gun was; the defendant stated he did not know and that he usually kept it in a drawer in his bedroom or a safe in the basement. The questioning continued as emergency medical technicians (hereinafter EMT) arrived and ministered to the defendant's injury. Officer Swanson testified that, at this point, he did not know if anyone was outside with the defendant's wife.

Police Officer Raymond Buttacavoli arrived when the defendant was being treated by the EMT; Officer Swanson was also with the defendant, but then walked away. Officer Buttacavoli questioned the defendant further and discovered a holster for a gun protruding from between two pillows of the couch. As he was questioning the defendant, Officer Buttacavoli was not sure where Officers Allen and Swanson had gone; there “were people scattered” through the house and he was aware that Officers Allen and Swanson were “checking the rest of the house.”

At the time when Officer Buttacavoli was with the defendant and Officers Allen and Swanson were checking the house, Police Officer Nicholas Alvarado arrived and learned from Officer Buttacavoli that the weapon was still missing and there were three children in the house. Officer Alvarado testified that, since other officers were already checking the house, he went into the backyard, searched it, and found a black plastic bag containing a handgun on the ground beside a shed; he then secured the area.

While Officer Alvarado was in the backyard, three children were removed from the house. Officer Swanson testified that, after he determined that the defendant had no weapon, he left the defendant with the EMT and removed everyone from the house. Three children were in bedrooms down the same hallway where the defendant had initially been found. The defendant's daughter, who was about 10 years old, was in her parents' bedroom, and the defendant's son and his friend, both of whom were about 15 or 16 years old, were in another bedroom. Officer Alvarado testified that he was “not sure exactly the time that [the children] were removed from the house,” but he saw them sitting in a vehicle parked in the driveway when he “exited the backyard” after finding the handgun.

Detective Thomas Pollock testified that he arrived at the scene about two hours later, at approximately 7:15 A.M. Officer Swanson told him that the defendant had been transported to the hospital and that a gun was behind the shed in the backyard. Detective Pollack obtained a written consent from the defendant's wife to search the premises. Detective Lee Krill testified that he arrived at about 9:40 A.M., and he retrieved the gun from the backyard and other evidence from inside the premises.

Based on this record, we determine that the Supreme Court properly denied suppression of the handgun seized from the backyard. While the consent of the defendant's wife did not render the handgun admissible ( see People v. May, 52 A.D.3d 147, 152, 861 N.Y.S.2d 276;cf. Matter of Leroy M., 16 N.Y.3d 243, 246–247, 919 N.Y.S.2d 484, 944 N.E.2d 1123,cert. denied––– U.S. ––––, 132 S.Ct. 155, 181 L.Ed.2d 71), the People met their burden of demonstrating the legality of the police conduct ( see People v. Berrios, 28 N.Y.2d 361, 367, 321 N.Y.S.2d 884, 270 N.E.2d 709;People v. Cole, 85 A.D.3d 1198, 926 N.Y.S.2d 163), pursuant to the emergency exception to the warrant requirement. “[Al]though warrantless entries into a home are ‘presumptively unreasonable’ ” ( People v. Molnar, 98 N.Y.2d 328, 331, 746 N.Y.S.2d 673, 774 N.E.2d 738, quoting Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639), a warrantless search and seizure in a protected area may be lawful under some circumstances, pursuant to the emergency doctrine ( see People v. Mitchell, 39 N.Y.2d 173, 177–178, 383 N.Y.S.2d 246, 347 N.E.2d 607,cert. denied426 U.S. 953, 96 S.Ct. 3178, 49 L.Ed.2d 1191). The exception applies where the police (1) have “reasonable grounds to believe there is an emergency at hand and an immediate need for their assistance for the protection of life or property,” (2) are “not ... primarily motivated by intent to arrest and seize evidence,” and (3) have a “reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched” ( People v. Mitchell, 39 N.Y.2d at 177–178, 383 N.Y.S.2d 246, 347 N.E.2d 607;see People v. Stanislaus–Blache, 93 A.D.3d 740, 741–742, 940 N.Y.S.2d 136;People v. Rodriguez, 77 A.D.3d 280, 283, 907 N.Y.S.2d 294).

The United States Supreme Court has held that the subjective intent of the police is not relevant to determining the reasonableness of police conduct under the Fourth Amendment to the United States Constitution ( see Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650). Consequently, the second prong of Mitchell is now relevant, if at all, only to claims raised under the New York State Constitution ( seeN.Y. Const., art. I, § 12). We need not determine in this case whether the second prong of Mitchell is still viable under the New York State Constitution ( see People v. Stanislaus–Blache, 93 A.D.3d at 742, 940 N.Y.S.2d 136;cf. People v. Robinson, 97 N.Y.2d 341, 350, 741 N.Y.S.2d 147, 767 N.E.2d 638), because we conclude that the actions of the police officers were permissible under both Brigham City and Mitchell ( see People v. Stanislaus–Blache, 93 A.D.3d at 742, 940 N.Y.S.2d 136).

Here, the police initially entered the house after they received a 911 call regarding a shooting and had confirmed that information with a person who was outside the house. Under these circumstances, the initial entry into the house was lawful ( see People v. Stanislaus–Blache, 93 A.D.3d at 741–742, 940 N.Y.S.2d 136;People v. Rodriguez, 77 A.D.3d at 288–289, 907 N.Y.S.2d 294;People v. Desmarat, 38 A.D.3d 913, 914–915, 833 N.Y.S.2d 559). Moreover, the additional information available to the officers who initially responded, including the defendant's incoherence and evasive answers about the location of the gun and the presence of children on the premises, established an ongoing emergency and danger to life, justifying the search for and seizure of the gun ( see People v. Stanislaus–Blache, 93 A.D.3d at 741–742, 940 N.Y.S.2d 136;People v. Bower, 27 A.D.3d 1122, 1124, 811 N.Y.S.2d 248;People v. Smith, 302 A.D.2d 410, 754 N.Y.S.2d 555;People v. Parker, 299 A.D.2d 859, 860, 750 N.Y.S.2d 405;People v. Adams, 236 A.D.2d 293, 654 N.Y.S.2d 130). Further the officers' testimony established that the search was not primarily motivated by the intent to make an arrest or seize evidence, and that there was a reasonable basis, approximating probable cause, to associate the area searched with the emergency ( see People v. Stanislaus–Blache, 93 A.D.3d at 742, 940 N.Y.S.2d 136;People v. Desmarat, 38 A.D.3d at 915, 833 N.Y.S.2d 559).

We do not agree with our dissenting colleagues that the emergency abated once the police frisked the defendant and knew that the children did not have the gun. The testimony established that, at the time Officer Alvarado decided to search the backyard, he was aware that other officers were searching the house, but he was not aware that the children were secure and out of danger. He testified that he was only inside the house “shortly” before he went outside,...