Opinion
770 KA 19–00431
09-27-2019
The PEOPLE of the State of New York, Respondent, v. Radu TURNER, Defendant–Appellant.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, LINDLEY, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree ( Penal Law § 265.03[3] ) and criminal possession of a controlled substance in the third degree (§ 220.16[1] ). We reject defendant's contention that County Court erred in refusing to suppress weapons that were found in his shed. The People established at the suppression hearing that the search of the shed was lawful pursuant to the emergency doctrine exception to the warrant requirement (see People v. Samuel , 152 A.D.3d 1202, 1203, 59 N.Y.S.3d 632 [4th Dept. 2017], lv denied 30 N.Y.3d 983, 67 N.Y.S.3d 585, 89 N.E.3d 1265 [2017] ). The emergency doctrine exception "is comprised of three elements: (1) the police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property and this belief must be grounded in empirical facts; (2) the search must not be primarily motivated by an intent to arrest and seize evidence; and (3) there must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched" ( People v. Doll , 21 N.Y.3d 665, 670–671, 975 N.Y.S.2d 721, 998 N.E.2d 384 [2013], rearg. denied 22 N.Y.3d 1053, 981 N.Y.S.2d 359, 4 N.E.3d 371 [2014], cert denied 572 U.S. 1022, 134 S.Ct. 1552, 188 L.Ed.2d 568 [2014] ). A police sergeant testified that he responded to a shots fired call in or around a neighborhood park and spoke with three witnesses at three different locations around the park, who confirmed that they heard gunshots. He approached defendant's residence, whose backyard bordered the park, based on his knowledge that defendant was a known gang member. The sergeant observed a shed in the backyard that had been broken into and was open, and he entered the shed to ensure that no one was hiding inside with a gun. We conclude that the People established through that testimony that all three prongs of the standard were met (see People v. Junious , 145 A.D.3d 1606, 1608–1609, 45 N.Y.S.3d 734 [4th Dept. 2016], lv denied 29 N.Y.3d 1033, 62 N.Y.S.3d 302, 84 N.E.3d 974 [2017], reconsideration denied 29 N.Y.3d 1129, 64 N.Y.S.3d 679, 86 N.E.3d 571 [2017] ).
Defendant contends that his guilty plea was not knowingly, intelligently, and voluntarily entered because he did not give a factual allocution to the crimes and gave only "yes" and "no" answers to the court's questions. That contention is actually a challenge to the factual sufficiency of the plea allocution, which defendant failed to preserve for our review inasmuch as he did not move to withdraw his guilty plea or vacate the judgment of conviction (see People v. Pryce , 148 A.D.3d 1625, 1625–1626, 51 N.Y.S.3d 737 [4th Dept. 2017], lv denied 29 N.Y.3d 1085, 64 N.Y.S.3d 175, 86 N.E.3d 262 [2017] ). This case does not fall within the narrow exception to the preservation rule set forth in People v. Lopez , 71 N.Y.2d 662, 666–667, 529 N.Y.S.2d 465, 525 N.E.2d 5 (1988) because "nothing in the plea colloquy negates an essential element of [the crimes], raises a potential defense to th[ose] charge[s], or otherwise casts doubt on defendant's guilt" ( Pryce , 148 A.D.3d at 1626, 51 N.Y.S.3d 737 ).
We have considered defendant's remaining contentions and conclude that they are without merit.