Opinion
07-06-2016
The PEOPLE, etc., appellant, v. Joseph BUNCE, respondent.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Glenn Green of counsel), for appellant. Laurette Mulry, Riverhead, N.Y. (Kalina R. Lovell of counsel), for respondent.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Glenn Green of counsel), for appellant.
Laurette Mulry, Riverhead, N.Y. (Kalina R. Lovell of counsel), for respondent.
WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN and SHERI S. ROMAN, JJ.
Appeal by the People from an order of the County Court, Suffolk County (Toomey, J.), dated September 11, 2014, which, after a hearing, granted those branches of the defendant's omnibus motion which were to suppress physical evidence and his statements to law enforcement officials.
ORDERED that the order is reversed, on the law, those branches of the defendant's omnibus motion which were to suppress physical evidence and his statements to law enforcement officials are denied, and the matter is remitted to the County Court, Suffolk County, for further proceedings on the indictment.
The defendant was charged with, among other things, criminal possession of a weapon in the second degree. In his omnibus motion, the defendant sought, inter alia, to suppress a gun recovered from his residence by the police, as well as statements he made to the police, on the ground that the police made a warrantless entry into his residence without consent or the existence of probable cause and exigent circumstances. After a hearing, the County Court granted those branches of the defendant's omnibus motion. We reverse.
Contrary to the People's contention, they failed to establish the existence of exigent circumstances (see People v. Green, 103 A.D.2d 362, 363–364, 480 N.Y.S.2d 220 ) justifying the police officers' warrantless entry into the residence of the defendant and his mother. However, contrary to the County Court's determination, the evidence established that the police officers lawfully entered the residence with the consent of the defendant's mother. “Where a person with ostensible authority consents to police presence on the premises, either explicitly or tacitly, the right to be secure against warrantless arrests in private premises as expressed in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 is not violated” (People v. Russo, 243 A.D.2d 658, 659, 663 N.Y.S.2d 623 ; see People v. Read, 74 A.D.3d 1245, 1246, 904 N.Y.S.2d 147 ). “[C]onsent can be established by conduct as well as words” (People v. Gonzalez, 222 A.D.2d 453, 453, 634 N.Y.S.2d 538 ; see People v. Satornino, 153 A.D.2d 595, 595, 544 N.Y.S.2d 224 ; People v. Davis, 120 A.D.2d 606, 606–607, 502 N.Y.S.2d 80 ).
Here, the defendant's mother called 911, and two officers responded to the subject residence after receiving a radio dispatch of a violent domestic incident between a mother and son. When the officers arrived at the location, the defendant's mother exited the residence and stated to the officers, in reference to the defendant, who was then re-entering the residence, “that's him. That's him. I don't want him here.” This conduct was sufficient to establish her consent to enter the residence (see Matter of Gilbert M., 127 A.D.3d 642, 642, 8 N.Y.S.3d 171 ; People v. Brown, 234 A.D.2d 211, 213, 651 N.Y.S.2d 981, affd. 91 N.Y.2d 854, 668 N.Y.S.2d 551, 691 N.E.2d 622 ; People v. Davis, 120 A.D.2d at 607, 502 N.Y.S.2d 80 ; People v. Taylor, 111 A.D.2d 520, 521, 489 N.Y.S.2d 394 ; People v. James, 2001 N.Y. Slip Op. 40035[U], *8, 2001 WL 856396 [Sup.Ct., Bronx County] ). Further, the defendant's mother also effectively consented to the officers' entry and presence in the residence by failing to ask them to leave or otherwise indicating that they did not have her permission to remain (see People v. Gonzalez, 222 A.D.2d 453, 634 N.Y.S.2d 538 ; People v. Schof, 136 A.D.2d 578, 579, 523 N.Y.S.2d 179 ), and by restraining her dog to facilitate their entry into the residence.
The parties' remaining contentions either are without merit or not properly before this Court (see CPL 470.15 ; People v. Ingram, 18 N.Y.3d 948, 949, 944 N.Y.S.2d 470, 967 N.E.2d 695 ; People v. Falquez, 66 A.D.3d 918, 918–919, 886 N.Y.S.2d 628 ).
Accordingly, the County Court should have denied those branches of the defendant's omnibus motion which were to suppress the gun he discarded after entering the residence, as well as his statements to law enforcement officials.