MEMORANDUM

Jeffrey Wicks, PLLC, Rochester (Jeffrey Wicks of Counsel), for Defendant–Appellant.

Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of Counsel), for Respondent.

Opinion

MEMORANDUM:

Defendant Jamie R. O'Dell (Jamie) appeals from a judgment convicting him upon a jury verdict of assault in the second degree (Penal Law § 120.05[3] ) and resisting arrest (§ 205.30). Defendant Doreena L. O'Dell (Doreena), Jamie's mother, appeals from a judgment convicting her upon a jury verdict of obstructing governmental administration in the second degree (§ 195.05). Jamie and Doreena were charged by the same indictment, and a joint jury trial was held. Their convictions stem from their conduct after the police made a warrantless entry into their home. A neighbor witnessed Jamie and a woman fighting in his driveway, Jamie threatened to kill the woman, and Jamie and the woman entered his home. When the police arrived at the home, Doreena would not allow them into the house, but the police forced their way into the home in order to check on the welfare of the occupants. A struggle ensued with the officers and defendants, and an officer was injured.

We reject defendants' contentions that Supreme Court (Affronti, J.) erred in not suppressing the observations of the officers after they made the warrantless entry into the home. “[T]he exclusionary rule does not require suppression of what police saw and heard when defendant[s], in being confronted in [their] home following an alleged Payton violation, undertook the commission of a new and independent crime” (People v. Ellis, 4 A.D.3d 877, 878, 771 N.Y.S.2d 471, lv. denied 3 N.Y.3d 639, 782 N.Y.S.2d 410, 816 N.E.2d 200, reconsideration denied 3 N.Y.3d 673, 784 N.Y.S.2d 12, 817 N.E.2d 830; see People v. Kohorst, 34 A.D.3d 1249, 1250, 823 N.Y.S.2d 807, lv. denied 8 N.Y.3d 947, 836 N.Y.S.2d 557, 868 N.E.2d 240; see generally People v. Dory, 59 N.Y.2d 121, 126–127, 463 N.Y.S.2d 753, 450 N.E.2d 673; People v. Abruzzi, 52 A.D.2d 499, 504, 385 N.Y.S.2d 94, affd. 42 N.Y.2d 813, 396 N.Y.S.2d 649, 364 N.E.2d 1342, cert. denied 434 U.S. 921, 98 S.Ct. 396, 54 L.Ed.2d 278). Even assuming, arguendo, that the observations of the police were subject to suppression under the circumstances of this case (see generally People v. Rossi, 80 N.Y.2d 952, 954, 590 N.Y.S.2d 872, 605 N.E.2d 359, rearg. denied 81 N.Y.2d 835, 595 N.Y.S.2d 398, 611 N.E.2d 299), we reject defendants' alternative contention that the court erred in denying suppression without a hearing. “Defendant[s] failed to make a sufficient factual showing to require a hearing” (People v. Hodge, 2 A.D.3d 1428, 1429, 768 N.Y.S.2d 907, lv. denied 2 N.Y.3d 741, 778 N.Y.S.2d 466, 810 N.E.2d 919; see CPL 710.60[3][b]; People v. Haskins, 86 A.D.3d 794, 795, 928 N.Y.S.2d 374, lv. denied 17 N.Y.3d 903, 933 N.Y.S.2d 658, 957 N.E.2d 1162). Based on the evidence submitted by defendants in support of their motions, the court properly concluded that “the police were justified in entering the house under the emergency exception to the warrant requirement” (Hodge, 2 A.D.3d at 1429, 768 N.Y.S.2d 907; see generally People v. Doll, 21 N.Y.3d 665, 670–671, 975 N.Y.S.2d 721, 998 N.E.2d 384, rearg. denied 22 N.Y.3d 1053, 981 N.Y.S.2d 359, 4 N.E.3d 371, cert. denied ––– U.S. ––––, 134 S.Ct. 1552, 188 L.Ed.2d 568).

We agree with defendants, however, that the court (Moran, J.) improperly removed certain elements of the crimes from the jury's consideration. “It is well settled that all the elements of an indicted crime which are not conceded by defendant or defendant's counsel must be charged” (People v. Flynn, 79 N.Y.2d 879, 881, 581 N.Y.S.2d 160, 589 N.E.2d 383; see

People v. Martin, 36 A.D.3d 717, 718, 826 N.Y.S.2d 747; People v. Milhouse, 246 A.D.2d 119, 123, 676 N.Y.S.2d 555). Thus, the jury was to determine, with respect to Jamie, whether the police were “performing a lawful duty” (Penal Law § 120.05[3]; see People v. Rivera, 46 A.D.3d 349, 350, 847 N.Y.S.2d 556, lv. denied 10 N.Y.3d 815, 857 N.Y.S.2d 49, 886 N.E.2d 814), and whether the arrest was “authorized” (§ 205.30) and, with respect to Doreena, whether the police were “performing an official function” (§ 195.05; see People v. Greene, 221 A.D.2d 559, 560, 634 N.Y.S.2d 144). When counsel for Jamie attempted to cross-examine an officer regarding the need for a warrant to enter the home, the court sua sponte instructed the jury that “[t]he [c]ourt has ruled that no search warrant was required under these circumstances.” The court thereby improperly removed the abovementioned elements from the jury's consideration (see generally Milhouse, 246 A.D.2d at 123, 676 N.Y.S.2d 555; Greene, 221 A.D.2d at 560, 634 N.Y.S.2d 144). We therefore reverse the convictions and grant a new trial. In light of our determination, we do not consider Jamie's remaining contention.

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and a new trial is granted.