Opinion
Argued January 4, 1983
Decided February 8, 1983
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, LAWRENCE N. MARTIN, JR., J.
Carl A. Vergari, District Attorney ( Anthony Joseph Servino of counsel), for appellant.
Herman Kaufman, Richard M. Asche, Jack T. Litman and Russell M. Gioiella for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
In granting the defendant's motion to suppress, the County Court expressly found not only that the defendant's consent to the initial entry did not extend to the ones the police effected on the following morning and thereafter, but that there was no basis in the evidence for the application of the emergency doctrine to justify re-entry. These findings have support in the record and, having been affirmed by the Appellate Division, are not subject to further review of this court ( People v Fernandez, 58 N.Y.2d 791; People v Harrison, 57 N.Y.2d 470). Moreover, absent a warrant, the re-entry was not sanctioned, without more, by the mere fact that a homicide was being investigated (see Mincey v Arizona, 437 U.S. 385; People v Knapp, 52 N.Y.2d 689, 694). The motion to suppress, therefore, was properly granted. For this reason, we have no occasion to pass upon the alternative theory on which the County Court also premised its determination, i.e., the legal conclusion that, once the defendant to the knowledge of the police had retained counsel, she no longer could "waive further her rights without the presence of counsel to permit the continuing search".
The motion was made following our reversal of the conviction based upon evidentiary errors committed at trial ( 50 N.Y.2d 908, mot for rearg den 50 N.Y.2d 1060). There was no abuse of discretion in entertaining the motion to suppress for the first time upon remand (cf. People v Fuentes, 53 N.Y.2d 892).
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, FUCHSBERG, MEYER and SIMONS concur.
Order affirmed in a memorandum.