Opinion
KA 01-00387.
February 11, 2004.
Appeal from a judgment of the Erie County Court (Timothy J. Drury, J.), rendered January 5, 2000. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a weapon in the third degree, criminal possession of a weapon in the fourth degree, and menacing in the second degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KAREN C. RUSSO-MC LAUGHLIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
DAVEN J. ELLIS, DEFENDANT-APPELLANT PRO SE.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (PAUL J. WILLIAMS, III, OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: HURLBUTT, J.P., SCUDDER, KEHOE, GORSKI, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the third degree (Penal Law § 265.02), criminal possession of a weapon in the fourth degree (§ 265.01 [4]), and menacing in the second degree (§ 120.14 [1]). Those charges arose out of an incident in which defendant threatened a police investigator by brandishing a rifle when the investigator attempted to arrest defendant at his home pursuant to a Texas arrest warrant.
County Court properly refused to suppress the investigator's observations during the initial entry into the home as well as the rifle and ammunition subsequently seized by police upon their reentry. Such evidence is immune from suppression pursuant to the attenuation doctrine ( see generally Wong Sun v. United States, 371 U.S. 471, 486-488; People v. Townes, 41 N.Y.2d 97, 101-102; People v. Evans, 289 A.D.2d 994, lv denied 97 N.Y.2d 728). Further, the exclusionary rule does not require suppression of what police saw and heard when defendant, in being confronted in his home following an alleged Payton violation, undertook the commission of a new and independent crime ( see United States v. Pryor, 32 F.3d 1192, 1196; United States v. Waupekenay, 973 F.2d 1533, 1537-1538; United States v. Garcia-Jordan, 860 F.2d 159, 160-161; see also People v. Van Duser, 277 A.D.2d 1034, 1035, lv denied 96 N.Y.2d 739; People v. Luffman, 233 A.D.2d 726, 729, lv denied 89 N.Y.2d 943). In addition, we conclude that the officer's reentry into the house to seize the rifle and ammunition was justified by exigent circumstances, inasmuch as the police had "reasonable grounds to believe that there [was] an emergency at hand and an immediate need for their [intervention] for the protection of life or property" ( People v. Mitchell, 39 N.Y.2d 173, 177, cert denied 426 U.S. 953; see People v. Molnar, 98 N.Y.2d 328, 331-332; People v. Johnson, 181 A.D.2d 103, 105-106, affd 81 N.Y.2d 980; People v. Parker, 299 A.D.2d 859, 860; People v. Adams, 236 A.D.2d 293, lv denied 90 N.Y.2d 854). In any event, the seizure of that tangible evidence upon the reentry into the house is, no less than the earlier police observations, immune from suppression under the attenuation and independent crime doctrines ( see Waupekenay, 973 F.2d at 1538; see also Pryor, 32 F.3d at 1196).
We have considered the remaining contentions of defendant, including his challenges to the validity of the guilty plea, and we conclude that those contentions are without merit.