People v. Smith

• Decision Date: 15 May 1997
• Citation: 658 N.Y.S.2d 259,239 A.D.2d 219
• Parties: The PEOPLE of the State of New York, Respondent, v. William SMITH, a/k/a Frank Mills, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 259

658 N.Y.S.2d 259

239 A.D.2d 219

The PEOPLE of the State of New York, Respondent, v. William SMITH, a/k/a Frank Mills, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

May 15, 1997.

Michael Maxwell, for respondent.

Edith Blumberg, for defendant-appellant.

Before WILLIAMS, J.P., and TOM, MAZZARELLI and ANDRIAS, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Paul Bookson, J.), rendered March 27, 1995, convicting defendant, after a jury trial, of grand larceny in the third degree, grand larceny in the fourth degree, fourteen counts of offering a false instrument for filing in the first degree, and criminal possession of a forged instrument in the second degree, and sentencing him, as a second felony offender, to concurrent terms of 3 1/2 to 7 years on the conviction of third-degree grand larceny, 2 to 4 years on the convictions of fourth-degree grand larceny and criminal possession of a forged instrument in the second degree, and 1 1/2 to 3 years on each of the convictions of offering a false instrument for filing in the first degree, affirmed.

Defendant's motion to suppress physical evidence and statements was properly denied. The evidence at the suppression hearing established that on April 27, 1994, at approximately 4:00 PM, an individual named Sherrill walked into the Midtown South precinct and told Police Officer Joseph Gallo that he had been assaulted earlier in the day by a man he knew as "Will." Sherrill informed Gallo that Will was staying at 330 West 36th Street, apartment 708, and Sherrill led Gallo there.

When they arrived at the apartment, Gallo observed defendant inside through the wide-open front door. Sherrill pointed out defendant as the man named Will who had assaulted him, and Gallo then knocked on the door and asked defendant about the incident. Defendant admitted having had an argument with Sherrill. Gallo asked defendant for identification, and defendant initially reached for his pocket, but then told Gallo he did not have it.

Defendant then began to walk toward a dresser inside the apartment. Gallo followed defendant into the room to make sure that defendant did not produce a gun or knife from the dresser. Gallo testified that he wanted to see what defendant was doing with his hands, and did not want defendant to have his back to him in case he retrieved a weapon. Gallo's gun was holstered at all times, and he never touched defendant.

Defendant removed one card from his wallet, and then replaced it. He then produced a New York City welfare identification card, bearing his photograph and the name "Frank Mills." Gallo asked him to remove the first card, which turned out to be another welfare identification card, with defendant's photo and the name "William Smith." Gallo asked defendant what "the deal" was, and defendant responded that the latter card was "old" and "no good." Defendant was then placed under arrest.

Defendant claims that the two identification cards should be suppressed because they were recovered pursuant to a warrantless entry and search of his home (see, Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639). However, the record supports the motion court's determination that the defendant implicitly consented to Gallo's entry. A defendant's consent may be established by conduct as well as by words (People v. Satornino, 153 A.D.2d 595, 544 N.Y.S.2d 224). Here, defendant engaged in a discussion with the officer from inside the apartment, he complied with the officer's request for identification without hesitation and not even the slightest objection to the officer's entry or continued presence in the apartment was raised. A consensual entry is a compelling inference from these facts (see, People v. Claude Davy, 236 A.D.2d 308, 654 N.Y.S.2d 309, People v. Gonzalez, 222 A.D.2d 453, 634 N.Y.S.2d 538, lv denied 88 N.Y.2d 848, 644 N.Y.S.2d 694, 667 N.E.2d 344; People v. Washington, 209 A.D.2d 817, 619 N.Y.S.2d 360, lv denied 85 N.Y.2d 944, 627 N.Y.S.2d 1006, 651 N.E.2d 931; People v. Schof, 136 A.D.2d 578, 523 N.Y.S.2d 179, lv denied 71 N.Y.2d 1033, 530 N.Y.S.2d 568, 526 N.E.2d 60; but see, People v. Richardson, 229 A.D.2d 316, 645 N.Y.S.2d 298, lv granted 88 N.Y.2d 1026, 651 N.Y.S.2d 25, 673 N.E.2d 1252).

In light of the above conclusion, it is unnecessary for us to determine whether Gallo's safety concerns alone would constitute exigent circumstances, or otherwise render the warrantless entry constitutionally permissible.

Denial of suppression of defendant's statements made to Gallo in the apartment was also proper, as defendant was clearly not in police custody at the time they were made (see, People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172, cert denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89).

Defendant's claims pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, are meritless since the striking of three African-American jurors in the first two rounds of jury selection, without more, is wholly inadequate to establish a prima facie case under Batson (see, People v. Jenkins, 84 N.Y.2d 1001, 1003, 622 N.Y.S.2d 509, 646 N.E.2d 811; People v. Childress, 81 N.Y.2d 263, 267, 598 N.Y.S.2d 146, 614 N.E.2d 709; People v. Lynn, 224 A.D.2d 294, 638 N.Y.S.2d 431, lv denied 88 N.Y.2d 881, 645 N.Y.S.2d 455, 668 N.E.2d 426).

All concur except Tom, J. who dissents in a memorandum as follows:

TOM, Justice (dissenting.)

I respectfully dissent and vote to reverse the judgment of conviction based on the illegal entry by the police into defendant's apartment.

On April 27, 1994, Police Officer Gallo accompanied Mr. Sherrill to 330 West 36th Street in Manhattan pursuant to Sherrill's complaint that he was assaulted by a man who was "staying" in apartment 708. When they arrived at the apartment, its front door was completely open and Gallo saw defendant inside, cleaning the one-room apartment.

After Sherrill identified defendant as the one who had assaulted him, Gallo, while still outside the apartment, began to question defendant, who admitted that he had an argument with Sherrill. Gallo then asked defendant to produce some identification. Defendant, who did not have his wallet on him, began to walk over to a dresser in the room to retrieve his wallet. As he turned and proceeded toward the dresser, Gallo stepped into the apartment, purportedly to make sure defendant "wasn't going to produce a knife or a gun", and then followed him to the dresser.

Defendant opened his wallet, extracted, but returned, a welfare identification card, and then produced a second welfare card, ostensibly identifying him. Officer Gallo then directed defendant to produce the first card, with which he complied. Only at that point did the officer notice that the official documents contained different names but each displayed defendant's photograph, providing probable cause to arrest defendant for forgery and filing a false instrument. Defendant was convicted, after a jury trial, of grand larceny in the third and fourth degrees, fourteen counts of offering a false instrument for filing in the first degree and criminal possession of a forged instrument in the second degree.

The United States Supreme Court, in Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 1382, 63 L.Ed.2d 639, held that "the Fourth Amendment has drawn a firm line at the entrance to the house" and expounded the basic constitutional principle that, absent exigency or consent, searches and seizures within a home without a warrant are presumptively unreasonable and a violation of the search and seizure provision of the Fourth Amendment of the Constitution.

In rejecting the propriety of a warrantless entry and suppressing the fruits of the illegal search, the Court of Appeals stated:

The police had neither a warrant nor consent to enter defendant's apartment. There was an affirmed finding that no exigent circumstances existed; the police themselves cannot by their own conduct create an appearance of exigency.

(People v. Levan, 62 N.Y.2d 139, 146, 476 N.Y.S.2d 101, 464 N.E.2d 469).

A review of the facts in the instant case clearly reveals that the safety of the officer was not compromised nor was there other exigency to justify a warrantless entry into the subject apartment. Initially, it should be noted that Officer Gallo responded to defendant's residence solely for investigative purposes, and did not conclude that he had a basis for an arrest. Therefore, the need for an arrest warrant as a predicate for entry was not in issue (cf., People v. Harris, 77 N.Y.2d 434, 568 N.Y.S.2d 702, 570 N.E.2d 1051; cf., People v. Levan, supra ).

Officer Gallo had no indication that defendant possessed a weapon: the complainant reported only that he had been beaten; the officer testified that physical wounds were not apparent; at the door to the apartment, Gallo observed no indication of any weaponry; and defendant had made no erratic or threatening moves. As such, the evidence would not justify entry on the basis of the officer's safety (cf., People v. Cloud, 79 N.Y.2d 786, 579 N.Y.S.2d 632, 587 N.E.2d 270, aff'g 168 A.D.2d 91, 571 N.Y.S.2d 444 [police received information that suspect in robbery-homicide...