Opinion
10999 Ind. 3347N/12
02-13-2020
The PEOPLE of the State of New York, Respondent, v. Edwin DIAZ, Defendant–Appellant.
Office of The Appellate Defender, New York (Lisa Packard of counsel), and Wachtell, Lipton, Rosen & Katz, New York (Nicholas Walter of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sheila O'Shea of counsel), for respondent.
Office of The Appellate Defender, New York (Lisa Packard of counsel), and Wachtell, Lipton, Rosen & Katz, New York (Nicholas Walter of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sheila O'Shea of counsel), for respondent.
Gische, J.P., Kapnick, Webber, Moulton, JJ.
Judgment, Supreme Court, New York County (Arlene D. Goldberg, J. at suppression hearing; Michael R. Sonberg, J. at plea and sentencing), rendered June 11, 2013, convicting defendant of criminal possession of a controlled substance in the second degree and criminal possession of a weapon in the second degree, and sentencing him, as a second felony drug offender, to an aggregate term of six years, unanimously affirmed.
The court properly denied defendant's suppression motion. There is no basis for disturbing the court's findings on issues of fact. The record supports the court's determination that at each stage of the encounter the police actions were justified either by the information they possessed or by defendant's voluntary consent.
The evidence elicited that defendant matched the description of a person who, according to a confidential informant, was selling drugs at a particular apartment. The police officers' observations indicated that defendant entered and left the subject apartment. Defendant was also observed engaging in actions known to be taken by drug dealers to avoid surveillance. This combination of factors provided, at the very least, an objective credible reason to approach defendant and ask where he was coming from (see People v. Corbett, 278 A.D.2d 118, 718 N.Y.S.2d 45 [1st Dept. 2000], lv denied 96 N.Y.2d 799, 726 N.Y.S.2d 376, 750 N.E.2d 78 [2001] ).
The police officers did not exceed the permissible bounds of a request for information. The record does not establish coercive circumstances as argued by defendant. The officer's statement, "Let's walk," to defendant, after defendant agreed to show the officers the building where he claimed to have been visiting a friend, was not a command when viewed in the context of the conversation (see People v. Flynn, 15 A.D.3d 177, 178, 789 N.Y.S.2d 33 [1st Dept. 2005], lv denied 4 N.Y.3d 853, 797 N.Y.S.2d 427, 830 N.E.2d 326 [2005] ).
The record supports the court's determinations that by handing over his keys and agreeing to show the police where the person defendant claimed to be visiting lived, defendant consented to the officers using the key to enter the building, and that defendant freely accompanied the officers to the fourth floor. The totality of relevant circumstances established a voluntary consent (see People v. Gonzalez, 39 N.Y.2d 122, 128–130, 383 N.Y.S.2d 215, 347 N.E.2d 575 [1976] ; People v. Hartley, 295 A.D.2d 159, 743 N.Y.S.2d 455 [1st Dept. 2002], lv denied 99 N.Y.2d 536, 752 N.Y.S.2d 596, 782 N.E.2d 574 [2002] ).
Once the officers smelled a strong odor of acetone, which is used in processing cocaine, outside of the apartment, the potential destruction of narcotics evidence constituted exigent circumstances justifying the officers' warrantless entry into the apartment (see Kentucky v. King, 563 U.S. 452, 460, 131 S.Ct. 1849, 179 L.Ed.2d 865 [2011] ; People v. White, 291 A.D.2d 250, 738 N.Y.S.2d 23 [1st Dept. 2002], lv denied 98 N.Y.2d 682, 746 N.Y.S.2d 472, 774 N.E.2d 237 [2002] ). The officers also properly conducted a protective sweep of the apartment given their observations of the apartment as well as their awareness that drug dealers are often in possession of weapons (see People v. Johnson, 160 A.D.3d 573, 574, 76 N.Y.S.3d 132 [1st Dept. 2018] ). Accordingly, the officers "possesse[d] a reasonable belief based on specific and articulable facts" that the area to be swept harbored a person posing a danger ( Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 [1990] ).
We have considered and rejected defendant's remaining arguments.