OPINION OF THE COURT
CIPARICK, J.
The primary issue presented by this appeal is whether defendant’s constitutional right to be free from an unlawful search and seizure was violated when the police entered his home without a warrant. We conclude that there is evidence in the record to support the determination that exigent circumstances justified the warrantless entry.
A grand jury indicted defendant for first degree robbery (Penal Law § 160.15 [4]), second degree robbery (Penal Law § 160.10 [1]), and other related charges stemming from an incident that occurred on March 21, 2004 at a Manhattan restaurant. Before trial, defendant pleaded guilty to attempted second degree robbery (Penal Law §§ 110.00, 160.10 [1]). Prior to defendant’s guilty plea, Supreme Court conducted a pretrial hearing to determine whether the police unlawfully arrested defendant and seized physical evidence in his home, whether defendant’s lineup was unduly suggestive, and whether the statements taken from defendant by the police violated defendant’s Miranda rights. Supreme Court denied defendant’s suppression motion in its entirety. The Appellate Division affirmed the judgment of conviction and sentence (59 AD3d 151 [1st Dept 2009]). A Judge of this Court granted defendant leave to appeal (12 NY3d 917 [2009]) and we now affirm.
There was evidence adduced at the hearing that, on March 22, 2004, Detective Shaska of the New York City Police Department went to a Cosi restaurant located on West 42nd Street in Manhattan to investigate a gunpoint robbery that occurred there the day before. Detective Shaska interviewed a number of the employees present at the time of the robbery including Elizam Mangual. Mangual told the detective that he first saw defendant and two other men come into the restaurant that afternoon, but that they had stayed only for a short period of time. Within the hour, however, Mangual noticed that the three men had returned. Defendant walked up to Mangual and told him that he had been a breadmaker at the restaurant. Moments later, Mangual saw defendant brandish a gun and direct the restaurant manager to the area where the safe is kept. Soon afterward, defendant and the two other men fled. Although Mangual did not see defendant take the money, defendant, in a [444]*444written statement given to the police after his arrest, admitted to stealing money from the safe.
Detective Shaska also testified that Mangual provided her with a detailed physical description of defendant and told her that he was wearing a black waist-length flight jacket, a gray hooded sweatshirt, a black skull cap, dark blue jeans and was carrying gray construction gloves with circles when he committed the robbery. Detective Shaska requested a list of former employees of the restaurant from the district manager to develop a possible suspect. The district manager provided that list to her and defendant’s name appeared on it. Detective Shaska determined that defendant had a criminal record and obtained his photograph from police files. She then placed this photograph into a photo array that also contained five photographs of other men who looked similar to defendant. Detective Shaska showed this photo array to Mangual and he identified defendant as the gunman.
Following Mangual’s identification of defendant, Detective Shaska learned that defendant was on parole. When Detective Shaska returned to work on March 25, 2004, she contacted defendant’s parole officer who provided her with defendant’s address. At approximately 11:00 p.m. that evening, Detective Shaska and four other police officers went to defendant’s apartment. As the police officers approached defendant’s front door, they could hear voices coming from inside the apartment. The police officers knocked on the door for a few minutes and identified themselves, but no one answered. One of the police officers used the building intercom system to call defendant’s apartment and a person the police officer believed to be male answered. While three of the police officers remained outside of defendant’s front door, Detective Shaska and one of her partners went to the apartment directly below defendant’s in order to access the fire escape outside his apartment. From the fire escape, Detective Shaska peered through a window into defendant’s apartment and saw a man lying on the floor. Guns drawn, Detective Shaska or her partner knocked on the window and stated, “Police department. Open up the door.” A short time thereafter, Detective Shaska observed a different person run towards the door.
Detective Santeufemia, one of the police officers who remained at defendant’s door, testified that eventually a young woman, later known to the police as Lenora Mitchell, answered the door. She was crying and it also appeared to him that she was having [445]*445difficulty breathing and was hyperventilating. Detective Santeufemia tried to calm her down and asked her, “Are you okay? Is everything all right?” Mitchell was unresponsive to his questions. Her appearance and inability to speak caused Detective Santeufemia to believe that she was facing a life-threatening situation. On this basis, he decided to enter defendant’s apartment to investigate. When he entered, he saw defendant standing in the hallway and handcuffed him.
Mitchell, a close friend of defendant, testified at the hearing for the defense. She explained that she was watching television with defendant and the lights in the apartment were off when they heard the police knocking at the front door. Defendant instructed her not to answer the door and they ignored the police officers’ repeated requests. Mitchell then became aware that there were police officers on the fire escape and she heard them say that they were going to enter the apartment through the window. Although it was dark inside the apartment, Mitchell testified that she saw one of the police officers on the fire escape point a gun at her face. She opened the front door and started to cry. Mitchell explained that the police officers calmed her down and assured her that everything was going to be all right.
The police then transported defendant to the station house and advised him of his Miranda rights. Defendant waived his rights and gave a statement admitting his involvement in the gunpoint robbery. Later, he was placed in a lineup and identified by three out of four witnesses.
We begin our analysis by looking at the federal and state constitutional proscriptions prohibiting the police from engaging in unlawful searches and seizures. It is axiomatic that warrantless entries into a home to make an arrest are “ ‘presumptively unreasonable’ ” (People v Molnar, 98 NY2d 328, 331 [2002], quoting Payton v New York, 445 US 573, 586 [1980]). Nevertheless, “[c]ourts have long recognized that the Fourth Amendment is not violated every time police enter a private premises without a warrant” (Molnar, 98 NY2d at 331). Indeed, provided that there is probable cause, the police may proceed without a warrant to effectuate an arrest within a home if exigent circumstances exist to justify a warrantless entry (see Kirk v Louisiana, 536 US 635, 638 [2002]; see also People v Burr, 70 NY2d 354, 360 [1987]).
[446]*446In determining whether exigent circumstances are present, both the federal and state courts have applied a number of different factors. These factors include
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION OF THE COURT
CIPARICK, J.
The primary issue presented by this appeal is whether defendant’s constitutional right to be free from an unlawful search and seizure was violated when the police entered his home without a warrant. We conclude that there is evidence in the record to support the determination that exigent circumstances justified the warrantless entry.
A grand jury indicted defendant for first degree robbery (Penal Law § 160.15 [4]), second degree robbery (Penal Law § 160.10 [1]), and other related charges stemming from an incident that occurred on March 21, 2004 at a Manhattan restaurant. Before trial, defendant pleaded guilty to attempted second degree robbery (Penal Law §§ 110.00, 160.10 [1]). Prior to defendant’s guilty plea, Supreme Court conducted a pretrial hearing to determine whether the police unlawfully arrested defendant and seized physical evidence in his home, whether defendant’s lineup was unduly suggestive, and whether the statements taken from defendant by the police violated defendant’s Miranda rights. Supreme Court denied defendant’s suppression motion in its entirety. The Appellate Division affirmed the judgment of conviction and sentence (59 AD3d 151 [1st Dept 2009]). A Judge of this Court granted defendant leave to appeal (12 NY3d 917 [2009]) and we now affirm.
There was evidence adduced at the hearing that, on March 22, 2004, Detective Shaska of the New York City Police Department went to a Cosi restaurant located on West 42nd Street in Manhattan to investigate a gunpoint robbery that occurred there the day before. Detective Shaska interviewed a number of the employees present at the time of the robbery including Elizam Mangual. Mangual told the detective that he first saw defendant and two other men come into the restaurant that afternoon, but that they had stayed only for a short period of time. Within the hour, however, Mangual noticed that the three men had returned. Defendant walked up to Mangual and told him that he had been a breadmaker at the restaurant. Moments later, Mangual saw defendant brandish a gun and direct the restaurant manager to the area where the safe is kept. Soon afterward, defendant and the two other men fled. Although Mangual did not see defendant take the money, defendant, in a [444]*444written statement given to the police after his arrest, admitted to stealing money from the safe.
Detective Shaska also testified that Mangual provided her with a detailed physical description of defendant and told her that he was wearing a black waist-length flight jacket, a gray hooded sweatshirt, a black skull cap, dark blue jeans and was carrying gray construction gloves with circles when he committed the robbery. Detective Shaska requested a list of former employees of the restaurant from the district manager to develop a possible suspect. The district manager provided that list to her and defendant’s name appeared on it. Detective Shaska determined that defendant had a criminal record and obtained his photograph from police files. She then placed this photograph into a photo array that also contained five photographs of other men who looked similar to defendant. Detective Shaska showed this photo array to Mangual and he identified defendant as the gunman.
Following Mangual’s identification of defendant, Detective Shaska learned that defendant was on parole. When Detective Shaska returned to work on March 25, 2004, she contacted defendant’s parole officer who provided her with defendant’s address. At approximately 11:00 p.m. that evening, Detective Shaska and four other police officers went to defendant’s apartment. As the police officers approached defendant’s front door, they could hear voices coming from inside the apartment. The police officers knocked on the door for a few minutes and identified themselves, but no one answered. One of the police officers used the building intercom system to call defendant’s apartment and a person the police officer believed to be male answered. While three of the police officers remained outside of defendant’s front door, Detective Shaska and one of her partners went to the apartment directly below defendant’s in order to access the fire escape outside his apartment. From the fire escape, Detective Shaska peered through a window into defendant’s apartment and saw a man lying on the floor. Guns drawn, Detective Shaska or her partner knocked on the window and stated, “Police department. Open up the door.” A short time thereafter, Detective Shaska observed a different person run towards the door.
Detective Santeufemia, one of the police officers who remained at defendant’s door, testified that eventually a young woman, later known to the police as Lenora Mitchell, answered the door. She was crying and it also appeared to him that she was having [445]*445difficulty breathing and was hyperventilating. Detective Santeufemia tried to calm her down and asked her, “Are you okay? Is everything all right?” Mitchell was unresponsive to his questions. Her appearance and inability to speak caused Detective Santeufemia to believe that she was facing a life-threatening situation. On this basis, he decided to enter defendant’s apartment to investigate. When he entered, he saw defendant standing in the hallway and handcuffed him.
Mitchell, a close friend of defendant, testified at the hearing for the defense. She explained that she was watching television with defendant and the lights in the apartment were off when they heard the police knocking at the front door. Defendant instructed her not to answer the door and they ignored the police officers’ repeated requests. Mitchell then became aware that there were police officers on the fire escape and she heard them say that they were going to enter the apartment through the window. Although it was dark inside the apartment, Mitchell testified that she saw one of the police officers on the fire escape point a gun at her face. She opened the front door and started to cry. Mitchell explained that the police officers calmed her down and assured her that everything was going to be all right.
The police then transported defendant to the station house and advised him of his Miranda rights. Defendant waived his rights and gave a statement admitting his involvement in the gunpoint robbery. Later, he was placed in a lineup and identified by three out of four witnesses.
We begin our analysis by looking at the federal and state constitutional proscriptions prohibiting the police from engaging in unlawful searches and seizures. It is axiomatic that warrantless entries into a home to make an arrest are “ ‘presumptively unreasonable’ ” (People v Molnar, 98 NY2d 328, 331 [2002], quoting Payton v New York, 445 US 573, 586 [1980]). Nevertheless, “[c]ourts have long recognized that the Fourth Amendment is not violated every time police enter a private premises without a warrant” (Molnar, 98 NY2d at 331). Indeed, provided that there is probable cause, the police may proceed without a warrant to effectuate an arrest within a home if exigent circumstances exist to justify a warrantless entry (see Kirk v Louisiana, 536 US 635, 638 [2002]; see also People v Burr, 70 NY2d 354, 360 [1987]).
[446]*446In determining whether exigent circumstances are present, both the federal and state courts have applied a number of different factors. These factors include
“(1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect is reasonably believed to be armed; (3) a clear showing of probable cause ... to believe that the suspect committed the crime; (4) strong reason to believe that the suspect is in the premises being entered; (5) a likelihood that the suspect will escape if not swiftly apprehended; and (6) the peaceful circumstances of the entry” (United States v Martinez-Gonzalez, 686 F2d 93, 100 [2d Cir 1982] [internal quotation marks and citations omitted]; see also United States v Reed, 572 F2d 412, 424 [2d Cir 1978]; People v Cloud, 168 AD2d 91, 92-94 [1st Dept 1991], affd 79 NY2d 786 [1991]).
We agree that these factors will appropriately assist a suppression court in its analysis of whether exigent circumstances are present, but are mindful that this list is illustrative and “not to be viewed as definitive or exhaustive” (Cloud, 168 AD2d at 94). Indeed, the ultimate inquiry a suppression court must make is “whether in light of all the facts of the particular case there was an urgent need that justifies a warrantless entry” (Martinez-Gonzalez, 686 F2d at 100 [internal quotation marks, parentheses and citations omitted]).
In this case, both Supreme Court and the Appellate Division concluded that exigent circumstances justified the warrant-less entry by the police into defendant’s home. On appeal, we note that defendant does not dispute the fact that the police had probable cause to arrest him for armed robbery, a violent crime. We also note that there is record support for the findings below that the police had strong reason to believe that defendant was inside his apartment and that they only entered defendant’s apartment after Mitchell opened the door and they observed that she was crying, hyperventilating, and unresponsive to their questions. These affirmed findings, having support in the record, preclude this Court’s further review (see People v Brown, 95 NY2d 942, 943 [2000]; People v Hallman, 92 NY2d 840, 842 [1998]).
Defendant argues, on the other hand, that it was the conduct of the police officers when they arrived at defendant’s home that created the exigency. Defendant maintains that it was the [447]*447police who frightened Mitchell out of defendant’s apartment and caused her to appear distressed. To be sure, we have held that “the police themselves cannot by their own conduct create an appearance of exigency” (People v Levan, 62 NY2d 139, 146 [1984]). The courts below, however, rejected defendant’s assertion, and their finding on this factual issue, also having support in the record, is likewise beyond our further review (see Brown, 95 NY2d at 943; cf. Levan, 62 NY2d at 143 [no exigent circumstances where defendant simply opened the door for his neighbor and the police “with guns drawn, bypassed the woman, entered the apartment and arrested defendant inside”]).
However, in affirming the order of the Appellate Division, we are not unmindful of the fact that the police could have obtained an arrest warrant for defendant from a neutral magistrate before it dispatched five members from its force to defendant’s home. Indeed, three days passed from the time the police identified defendant as the gunman to the time they went to his home to arrest him. Although we acknowledge that there was nothing illegal about the police going to defendant’s apartment and requesting that he voluntarily come out (see People v Minley, 68 NY2d 952, 953 [1986]) and conclude that exigent circumstances in this case ultimately justified the warrantless entry, we recognize that it would have been more prudent if the police obtained a warrant for defendant’s arrest before going to his home.
Since exigent circumstances justified the warrantless entry into defendant’s home and his subsequent arrest, the seizure of the articles of clothing from defendant’s home that were in plain view and that matched the description provided by Mangual was proper. We also conclude that Supreme Court properly denied defendant’s motion to suppress his statements. There was evidence in the record to support that court’s determination that defendant voluntarily and knowingly waived his Miranda rights and agreed to be interviewed by the police.
Defendant’s final contention that the lineup was unduly suggestive because he was the only person wearing a gray hooded sweatshirt, an article of clothing which was part of a detailed clothing description provided to Detective Shaska by Mangual, is without merit. A lineup is nonsuggestive when the [448]*448participants resemble each other so that the defendant is not “singled out for identification” (People v Chipp, 75 NY2d 327, 336 [1990]). The question whether a lineup is unduly suggestive is a mixed question of law and fact (see People v Jackson, 98 NY2d 555, 559 [2002]). If there is record support for the determinations of the lower courts that a lineup is not unduly suggestive, that issue is beyond this Court’s review (see id.).
Here, defendant and the five fillers were all African-American males who were of similar age and skin tones. They all had short hair and close-cropped beards. The men in the lineup were seated, mitigating any differences in height. Defendant’s sole issue with the lineup is the fact that he was wearing a gray hooded sweatshirt. Of course, where a suspect is the only one in a lineup wearing the same “distinctive clothing” as described by a witness to the crime, a lineup is unduly suggestive as a matter of law (People v Owens, 74 NY2d 677, 678 [1989]). In contrast, where the clothing described by the witness and then worn by the defendant at the lineup is “not unusual,” it is not considered suggestive (People v Gilbert, 295 AD2d 275, 277 [1st Dept 2002], lv denied 99 NY2d 558 [2002]; cf. Owens, 74 NY2d at 678 [defendant “conspicuously displayed” in lineup where he was the only person wearing “a tan vest and a blue snorkel jacket—which fit the description of the clothing allegedly worn by the perpetrator of the crime”]). Here, Supreme Court viewed a photograph of the lineup and noted that defendant and all the fillers were wearing nondescript street clothing and the gray hooded sweatshirt worn by defendant was a “generic and common article of clothing.” Moreover, since the sweatshirt was only one of the many items of clothing described by the witness, Supreme Court concluded that although defendant happened to be wearing the same type of sweatshirt in the lineup, it did not make the lineup unduly suggestive. Therefore, since the affirmed findings by the Appellate Division that the lineup was not unduly suggestive are amply supported by the record, this issue is likewise beyond our further review (see Jackson, 98 NY2d at 559).
Accordingly, the order of the Appellate Division should be affirmed.
In holding that exigent circumstances justified the warrantless entry into defendant’s home, we need not determine if the police formed the subjective intent to arrest defendant at his home (see People v Mitchell, 39 NY2d 173, 177-178 [1976]). In any event, since defendant never raised the “primary motivation” argument in Supreme Court, it is unpreserved for our review.