People v. Love

204 A.D.2d 97, 610 N.Y.S.2d 958, 1994 N.Y. App. Div. LEXIS 4708

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 5, 1994
• Status: Published

Opinions

—Judgment, Supreme Court, New York County (Charles Tejada, J.), rendered May 26, 1992, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 5 to 10 years is affirmed.

The evidence at the suppression hearing was that two police officers, on uniform foot patrol, immediately responded to a radio transmission of "a man with a gun” in a specified room at a named hotel. With guns drawn, they knocked on the designated hotel room door. A woman opened the door about 15 inches, and when she tried to slam the door shut, the officers pushed it open. Upon entry into the 8 feet by 8 feet room, the officers saw what appeared to be an automatic handgun on the floor, and in open view on a table, drugs and drug paraphernalia. Defendant was on the bed.

We agree with the hearing court that the requirements of the emergency doctrine were satisfied, justifying the officers’ warrantless entry into the room, and the resulting denial of defendant’s motion to suppress the contraband (see, People v Mitchell, 39 NY2d 173, 177-178, cert denied 426 US 953). Contrary to the conclusion reached by the dissent, this case is not appreciably different from People v DePaula (179 AD2d 424). In People v DePaula (supra, at 426), it was stated that the "nature and specificity of the call, the speed with which the officers responded (thereby increasing the chances that the danger still existed) and their reception by defendant, together constituted a valid basis for an objective belief that an emergency situation existed”. While the report in this case was of a "man with a gun” as opposed to the report of " 'shots fired’ ” received in DePaula (supra, at 426) all of the other factors were the same. The dissent notes that in DePaula (supra, at 426), it was stated that "where the police receive a call of shots fired, as a crime in progress * * * any delay caused by [an attempt to find corroboration or other] investigation could plainly result in further injury or other serious consequences”. There was clearly the same possibility for serious consequences if the responding officers in this case allowed the door to be closed and did not enter. The dissent’s reference to a matter in Boston where the police entered the wrong apartment is totally inappropriate. The dissent blithely ignores the fact that here the police entered the correct apartment.

Viewing the evidence in the light most favorable to the People and giving them the benefit of every reasonable inference (People v Malizia, 62 NY2d 755, cert denied 469 US 932), we find that the evidence, which included defendant’s close proximity to drugs and drug paraphernalia used in the manufacture and packaging of crack/cocaine, was sufficient as a matter of law to support a finding that defendant knowingly possessed at least one-half ounce of cocaine (see, People v Ryan, 82 NY2d 497, 505). Moreover, upon an independent review of the facts, we find that the verdict was not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490).

Contrary to defendant’s contention, the trial court’s decision to allow the first six sworn jurors to leave the courtroom for the day while voir dire of the remaining prospective jurors proceeded was not per se reversible error (People v Cassado, 156 AD2d 183, lv denied 75 NY2d 917). Both defendant and his attorney were present when the court excused the jurors but did not object, and, in any event, there being no showing of any real prejudice, the error, if any, was harmless (supra).

We have considered defendant’s remaining arguments, including the assertion that he was denied a fair trial by the court’s Sandoval ruling, and find them to be without merit. Concur—Sullivan, J. P., Wallach, Kupferman and Ross, JJ.