Opinion
2014-05-29
The PEOPLE of the State of New York, Respondent, v. John GIBSON, Appellant.
John P.M. Wappett, Public Defender, Lake George (Bryan M. Racino of counsel), for appellant. Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), for respondent.
John P.M. Wappett, Public Defender, Lake George (Bryan M. Racino of counsel), for appellant. Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), for respondent.
Before: PETERS, P.J., STEIN, ROSE and EGAN JR., JJ.
PETERS, P.J.
Appeal from a judgment of the County Court of Warren County (Hall Jr., J.), rendered August 16, 2011, convicting defendant upon his plea of guilty of the crimes of criminal possession of a weapon in the third degree and menacing in the second degree.
Defendant was arrested and charged with criminal possession of a weapon in the third degree and menacing in the second degree after waving a gun at two taxicab drivers outside the door of his apartment. County Court denied defendant's motion to suppress a pellet gun seized from his apartment, concluding that probable cause existed for defendant's arrest and that the warrantless entry into his apartment was justified by the emergency doctrine. At the ensuing trial, prior to the close of the People's case, defendant pleaded guilty to the indictment. County Court sentenced him, as a persistent felony offender, to an aggregate prison term of 15 years to life. Defendant appeals.
Defendant's contention that count one of the indictment failed to adequately inform him of the nature of the accusations against him is without merit. Such count used the relevant statutory language to charge defendant with criminal possession of a weapon in the third degree and set forth additional information as to the date and location of the offense, thereby alleging “where, when and what” defendant purportedly did ( People v. Iannone, 45 N.Y.2d 589, 598, 412 N.Y.S.2d 110, 384 N.E.2d 656 [1978];seeCPL 200.50[7][a]; People v. Young, 100 A.D.3d 1186, 1188, 954 N.Y.S.2d 244 [2012],lv. denied21 N.Y.3d 1021, 971 N.Y.S.2d 503, 994 N.E.2d 399 [2013];People v. Perez, 93 A.D.3d 1032, 1034, 942 N.Y.S.2d 227 [2012],lv. denied19 N.Y.3d 1000, 951 N.Y.S.2d 476, 975 N.E.2d 922 [2012] ). Because the charged offense can be committed by possessing either an imitation pistol or a dangerous weapon ( seePenal Law §§ 265.01[2]; 265.02[1] ), the failure of the indictment to so specify did not render that count jurisdictionally inadequate ( see People v. Hagmann, 160 A.D.2d 1125, 1128, 553 N.Y.S.2d 908 [1990];People v. Nicholas, 35 A.D.2d 18, 20, 312 N.Y.S.2d 645 [1970];see also People v. Charles, 61 N.Y.2d 321, 327–328, 473 N.Y.S.2d 941, 462 N.E.2d 118 [1984] ).
We agree with County Court that exigent circumstances existed to justify the warrantless entry into defendant's apartment, and that the subsequent seizure of the gun in plain view was lawful. “Appraising a particular situation to determinewhether exigent circumstances justified a warrantless intrusion into a protected area presents difficult problems of evaluation and judgment. This difficulty is highlighted by the fact that Judges, detached from the tension and drama of the moment, must engage in reflection and hindsight in balancing the exigencies of the situation against the rights of the accused” ( People v. Mitchell, 39 N.Y.2d 173, 177, 383 N.Y.S.2d 246, 347 N.E.2d 607 [1976],cert. denied426 U.S. 953, 96 S.Ct. 3178, 49 L.Ed.2d 1191 [1976] ). Pursuant to the emergency exception to the warrant requirement, the police may make a warrantless entry into a protected area if three prerequisites are met: “(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. (2) The search must not be primarily motivated by intent to arrest and seize evidence. (3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched” ( id. at 177–178, 383 N.Y.S.2d 246, 347 N.E.2d 607). The requisite reasonable grounds for the belief that an emergency exists must be based upon objective facts, rather than the subjective feelings of the police ( see id. at 178, 383 N.Y.S.2d 246, 347 N.E.2d 607;People v. Musto, 106 A.D.3d 1380, 1382, 966 N.Y.S.2d 263 [2013],lv. denied21 N.Y.3d 1007, 971 N.Y.S.2d 258, 993 N.E.2d 1281 [2013];People v. Greenleaf, 222 A.D.2d 838, 840, 634 N.Y.S.2d 892 [1995],lv. denied87 N.Y.2d 973, 642 N.Y.S.2d 202, 664 N.E.2d 1265 [1996] ).
The United States Supreme Court has eliminated the second factor for 4th Amendment purposes ( see Brigham City v. Stuart, 547 U.S. 398, 404–405, 126 S.Ct. 1943, 164 L.Ed.2d 650 [2006] ), and the Court of Appeals has had no occasion to consider whether this factor remains viable under the N.Y. Constitution in light of that decision ( see People v. Doll, 21 N.Y.3d 665, 671 n. 1, 975 N.Y.S.2d 721, 998 N.E.2d 384 [2013],cert. denied––– U.S. ––––, 134 S.Ct. 1552, 188 L.Ed.2d 568 [2014];People v. McBride, 14 N.Y.3d 440, 447 n., 902 N.Y.S.2d 830, 928 N.E.2d 1027 [2010],cert. denied––– U.S. ––––, 131 S.Ct. 327, 178 L.Ed.2d 212 [2010];People v. Dallas, 8 N.Y.3d 890, 891, 832 N.Y.S.2d 893, 865 N.E.2d 1 [2007] ). The issue need not be determined here since, in our view, the police were presented with an emergency situation under both standards.
At approximately 9:00 p.m. on an October night, police received a 911 dispatch that a male suspect was pointing a gun at two taxicab drivers outside a residence. Officers arrived at the scene within minutes and surrounded the building. They possessed no description of the perpetrator, learning only that the male suspect had entered the right-side door of the residence. As the police shone the spotlights of their vehicles at the building, an officer observed people moving in the windows on the second floor. Moments later—unprompted by any communications from or demands by the police—a man emerged from the right door of the building. He was instructed to get down on the ground, handcuffed and searched. No weapon was found on him, yet he denied that there was anyone else in the residence. With the right-hand door still open and its interior dark, one officer entered the residence, followed by another, to determine if someone inside was armed or injured.
In our view, the information known to law enforcement rendered it objectively reasonable for the officers to believe that the armed perpetrator could still be inside the building. Although the dissent stresses the fact that the subject building was a multi-family house, thus discounting the officer's observation of people on the second floor, the evidence adduced at the suppression hearing does not establish that the responding officers had any knowledge of the building's configuration. To the contrary, both the arresting officer and one of the officers who ultimately entered the apartment testified that, at that point in time, they were unaware of the layout of the building. While further investigation and consideration removed from the exigencies of the situation may have uncovered this fact, “the requirement of reasonable grounds to believe that an emergency existed must be applied by reference to the circumstances then confronting the officer, including the need for a prompt assessment of sometimes ambiguous information concerning potentially serious consequences” ( People v. Rodriguez, 77 A.D.3d 280, 291, 907 N.Y.S.2d 294 [2010],lv. denied15 N.Y.3d 955, 917 N.Y.S.2d 115, 942 N.E.2d 326 [2010] [internal quotation marks and citations omitted]; see People v. Calhoun, 49 N.Y.2d 398, 403, 426 N.Y.S.2d 243, 402 N.E.2d 1145 [1980] ). Under the circumstances presented, we are not willing to conclude that the police should have assumed that this individual was the perpetrator and were constitutionally precluded from conducting a protective sweep to ascertain whether any armed persons were inside ( see People v. Garcia, 27 A.D.3d 307, 307, 815 N.Y.S.2d 25 [2006],lv. denied6 N.Y.3d 894, 817 N.Y.S.2d 629, 850 N.E.2d 676 [2006];People v. Rivera, 257 A.D.2d 425, 426, 683 N.Y.S.2d 513 [1999],lv. denied93 N.Y.2d 901, 689 N.Y.S.2d 714, 711 N.E.2d 990 [1999];People v. Love, 204 A.D.2d 97, 98, 610 N.Y.S.2d 958 [1994],affd. 84 N.Y.2d 917, 620 N.Y.S.2d 809, 644 N.E.2d 1365 [1994];People v. DePaula, 179 A.D.2d 424, 426, 579 N.Y.S.2d 10 [1992];cf. People v. Stevens, 57 A.D.3d 1515, 1516, 871 N.Y.S.2d 525 [2008],lv. denied12 N.Y.3d 822, 881 N.Y.S.2d 29, 908 N.E.2d 937 [2009] ).
As for the remaining two prongs of the emergency doctrine, the officers' testimony—which County Court found credible—established that entry into defendant's apartment was for the purpose of ascertaining whether a suspect or other victims were inside. The brevity of the sweep and the fact that the officers did not turn on the lights when they entered further support the finding that the primary motivation was not to conduct a search for evidence. Finally, the victims had identified the right door to the building as the one that the suspect had entered after waving the gun at them, and the officers therefore had a reasonable basis to associate defendant's apartment with the area to be searched. Accordingly, we find that the police were presented with exigent circumstances justifying their warrantless entry into defendant's home ( see People v. Mitchell, 39 N.Y.2d at 180, 383 N.Y.S.2d 246, 347 N.E.2d 607;People v. Musto, 106 A.D.3d at 1381–1383, 966 N.Y.S.2d 263;People v. Rossi, 99 A.D.3d 947, 949–950, 952 N.Y.S.2d 285 [2012],lv. granted20 N.Y.3d 1066, 962 N.Y.S.2d 618, 985 N.E.2d 928 [2013] ).
Once inside, the officers conducted a sweep of what was found to be a small, one bedroom apartment and determined that no one was present. As he was exiting, one officer observed a gun in a holster in a partially opened dresser drawer. While defendant questions this officer's testimony that his discovery of the weapon was inadvertent, County Court found such testimony to be credible, and we find no basis upon which to disturb that determination ( see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977];People v. Merritt, 96 A.D.3d 1169, 1170, 946 N.Y.S.2d 306 [2012],lv. denied19 N.Y.3d 1027, 953 N.Y.S.2d 561, 978 N.E.2d 113 [2012];People v. Everett, 96 A.D.3d 1105, 1106, 945 N.Y.S.2d 494 [2012],lv. denied19 N.Y.3d 996, 951 N.Y.S.2d 472, 975 N.E.2d 918 [2012] ). As this officer was lawfully in defendant's apartment pursuantto the emergency doctrine, the gun was in plain view as he was exiting and its incriminatory nature was readily apparent, seizure of that evidence was lawful ( see People v. Diaz, 81 N.Y.2d 106, 110, 595 N.Y.S.2d 940, 612 N.E.2d 298 [1993];People v. Spencer, 272 A.D.2d 682, 683, 708 N.Y.S.2d 488 [2000],lv. denied95 N.Y.2d 858, 714 N.Y.S.2d 9, 736 N.E.2d 870 [2000];People v. Carby, 198 A.D.2d 366, 366–367, 603 N.Y.S.2d 881 [1993],lv. denied82 N.Y.2d 922, 610 N.Y.S.2d 174, 632 N.E.2d 484 [1994];People v. Cranmer, 167 A.D.2d 566, 567, 563 N.Y.S.2d 683 [1990],lv. denied77 N.Y.2d 904, 569 N.Y.S.2d 937, 572 N.E.2d 620 [1991] ).
This officer testified that he exited the apartment briefly to obtain a camera so that he could take a picture of the gun before seizing it. To the extent that defendant now argues that this subsequent entry into the apartment to effectuate the seizure was constitutionally impermissible, he failed to preserve this issue for our review ( seeCPL 470.05[2]; People v. Dancey, 57 N.Y.2d 1033, 1034–1035, 457 N.Y.S.2d 782, 444 N.E.2d 32 [1982];People v. Crawford, 61 A.D.3d 773, 774, 877 N.Y.S.2d 168 [2009],lv. denied13 N.Y.3d 743, 886 N.Y.S.2d 97, 914 N.E.2d 1015 [2009] ). In any event, his contention lacks merit ( see People v. Myrtetus, 43 N.Y.2d 758, 759–760, 401 N.Y.S.2d 1011, 372 N.E.2d 799 [1977];People v. Daniels, 97 A.D.3d 845, 849, 948 N.Y.S.2d 431 [2012],lv. denied20 N.Y.3d 931, 957 N.Y.S.2d 691, 981 N.E.2d 288 [2012];People v. Desmarat, 38 A.D.3d 913, 915, 833 N.Y.S.2d 559 [2007],lv. denied9 N.Y.3d 842, 840 N.Y.S.2d 769, 872 N.E.2d 882 [2007];People v. George, 7 A.D.3d 810, 811, 776 N.Y.S.2d 883 [2004],lv. denied3 N.Y.3d 674, 784 N.Y.S.2d 13, 817 N.E.2d 831 [2004] ).
We are similarly unpersuaded by defendant's contention that his arrest was without probable cause. Probable cause exists where the police have “ ‘information sufficient to support a reasonable belief that an offense has been ... committed’ by the person arrested” ( People v. Shulman, 6 N.Y.3d 1, 25, 809 N.Y.S.2d 485, 843 N.E.2d 125 [2005],cert. denied547 U.S. 1043, 126 S.Ct. 1623, 164 L.Ed.2d 339 [2006], quoting People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985] ). Hearsay statements may, in whole or part, establish probable cause, so long as the People establish both that the informant was reliable and had some basis for the knowledge transmitted ( see People v. Ketcham, 93 N.Y.2d 416, 421, 690 N.Y.S.2d 874, 712 N.E.2d 1238 [1999];People v. Bigelow, 66 N.Y.2d at 423, 497 N.Y.S.2d 630, 488 N.E.2d 451;see generally Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 [1969];Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 [1964] ). Even hearsay-upon-hearsay may establish probable cause, as “the issue is not the length of the chain but rather whether both prongs of the [ Aguilar–Spinelli ] test are met at each level” ( People v. Parris, 83 N.Y.2d 342, 347–348, 610 N.Y.S.2d 464, 632 N.E.2d 870 [1994] [internal quotation marks and citations omitted] ).
At the suppression hearing, police officers testified that they responded to a police dispatch that a man was waving a gun at a cab driver. The police dispatcher's information came from the cab company dispatcher who, in turn, was receiving information directly from a victim. In addition, while at the scene, the officer who was speaking to the victims from a safe distance was providing information to the other officers via radio, including that the victims had observed the suspect enter the right-side door of the building. In both instances, each informant in the chain had a basis for the knowledge transmitted, which originated from the victims' personal observations of the events described. Moreover, information provided by private citizen informants—such as the taxicab dispatcher and the eyewitness victims—is presumed to be reliable ( see id. at 350, 610 N.Y.S.2d 464, 632 N.E.2d 870;People v. Hetrick, 80 N.Y.2d 344, 349, 590 N.Y.S.2d 183, 604 N.E.2d 732 [1992] ), as is information received from a fellow police officer ( see People v. Ketcham, 93 N.Y.2d at 420, 690 N.Y.S.2d 874, 712 N.E.2d 1238;People v. Landy, 59 N.Y.2d 369, 375, 465 N.Y.S.2d 857, 452 N.E.2d 1185 [1983] ). Thus, both prongs of the Aguilar–Spinelli test were met. When moments later defendant exited from that same right-side door that the perpetrator was observed to have entered, the officers were justified in forcibly detaining him in order to quickly confirm or dispel their reasonable suspicion that he was the gunman ( see People v. Allen, 73 N.Y.2d 378, 380, 540 N.Y.S.2d 971, 538 N.E.2d 323 [1989];People v. Hicks, 68 N.Y.2d 234, 240–241, 508 N.Y.S.2d 163, 500 N.E.2d 861 [1986];People v. Stroman, 107 A.D.3d 1023, 1024, 967 N.Y.S.2d 202 [2013],lv. denied21 N.Y.3d 1046, 972 N.Y.S.2d 543, 995 N.E.2d 859 [2013];People v. Mabeus, 68 A.D.3d 1557, 1560–1561, 893 N.Y.S.2d 644 [2009],lv. denied14 N.Y.3d 842, 901 N.Y.S.2d 148, 927 N.E.2d 569 [2010];People v. Tillman, 57 A.D.3d 1021, 1023, 867 N.Y.S.2d 793 [2008] ). Once a sweep of the apartment verified that there was no one else present and that there was no other access to the rest of the building, police had probable cause to arrest defendant ( see People v. Stroman, 107 A.D.3d at 1024, 967 N.Y.S.2d 202;People v. Rose, 72 A.D.3d 1341, 1345, 899 N.Y.S.2d 414 [2010],lv. denied16 N.Y.3d 745, 917 N.Y.S.2d 627, 942 N.E.2d 1052 [2011];People v. Tillman, 57 A.D.3d at 1023, 867 N.Y.S.2d 793).
As the People established probable cause for defendant's arrest based upon the testimony adduced at the initial suppression hearing, County Court's decision to grant the People's motion to reopen the hearing for presentation of further proof on this issue did not, as defendant asserts, have the effect of “afford[ing] the People a second chance to succeed where once they had tried and failed” ( People v. Havelka, 45 N.Y.2d 636, 643, 412 N.Y.S.2d 345, 384 N.E.2d 1269 [1978] [internal quotation marks and citation omitted] ).
Defendant's remaining contentions do not require extended discussion. County Court did not err in denying defendant's motion to reopen the suppression hearing, as he failed to establish that the additional evidence he sought to introduce could not have been discovered with reasonable diligence prior to the court's ruling on the original motion ( seeCPL 710.40[4]; People v. Wynn, 55 A.D.3d 1378, 1379, 864 N.Y.S.2d 641 [2008],lv. denied11 N.Y.3d 901, 873 N.Y.S.2d 277, 901 N.E.2d 771 [2008];People v. King, 170 A.D.2d 710, 712, 565 N.Y.S.2d 621 [1991],lv. denied77 N.Y.2d 997, 571 N.Y.S.2d 923, 575 N.E.2d 409 [1991] ). Finally, we find no support for defendant's claim that he was punished for asserting his right to trial. Although the pretrial plea offer rejected by defendant would have resulted in a significantly lighter sentence, defendant received the minimum permissible sentence upon the court's decision to sentence him as a persistent felony offender ( seePenal Law §§ 70.00[3][a][i]; 70.10[2] ). That determination was made after fully exploring the details of defendant's extensive criminal history—which included 37 arrests resulting in 28 convictions, 10 of which were for felonies—and after having heard the victims' testimony as to how defendant's actions had put them in fear for their lives. Under these circumstances, we will not disturb defendant's sentence ( see People v. Wicks, 73 A.D.3d 1233, 1236–1237, 900 N.Y.S.2d 485 [2010],lv. denied15 N.Y.3d 857, 909 N.Y.S.2d 34, 935 N.E.2d 826 [2010];People v. Jenner, 39 A.D.3d 1083, 1088, 835 N.Y.S.2d 501 [2007],lv. denied9 N.Y.3d 845, 840 N.Y.S.2d 772, 872 N.E.2d 885 [2007] ).
ORDERED that the judgment is affirmed.
STEIN and EGAN JR., JJ., concur.
ROSE, J. (concurring in part and dissenting in part).
I disagree with the majority's conclusion that the People established the existence of emergency circumstances justifying the warrantless entry into defendant's apartment and, therefore, respectfully dissent from that part of the decision.
Warrantless searches and seizures within the privacy of the home are presumptively unreasonable, and the People bear the burden of establishing that the police conduct at issue falls within a carefully circumscribed exception to the warrant requirement ( see Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 [1980];Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 26 L.Ed.2d 409 [1970];People v. Knapp, 52 N.Y.2d 689, 694, 439 N.Y.S.2d 871, 422 N.E.2d 531 [1981] ). In my view, once defendant was in custody, the record discloses no reasonable grounds to believe that an emergency was at hand justifying a warrantless entry into his apartment. Testimony at the suppression hearing established that at approximately 9:00 p.m., the police received a 911 report of a person pointing a gun at the caller. Upon arrival at the scene minutes later, the police observed a multi-family house with a main, front porch entrance as well as a separate, smaller porch and door on the right side of the building. They learned that there were two victims, both taxicab drivers, and that the male with the gun had gone into his right-side apartment door. The victims were removed to a safe distance from the residence and, shortly after the police aimed their spotlights at the house, defendant emerged from the right-side apartment door, leaving the door open and the lights off inside. Defendant complied with the officers' directions to lay down on the ground outside the house, he was handcuffed and searched, but no weapon was found. The police officer who handcuffed defendant asked him if anyone else was inside the apartment, and defendant said no. That police officer then directed another officer to enter the darkened apartment in order to determine if anyone else was inside.
This evidence discloses no objective facts upon which to base a reasonable belief that any additional victims or suspects were in the apartment ( see People v. Fields, 45 N.Y.2d 986, 988, 413 N.Y.S.2d 112, 385 N.E.2d 1040 [1978];People v. Mormon, 100 A.D.3d 782, 783, 954 N.Y.S.2d 152 [2012],lv. denied20 N.Y.3d 1102, 965 N.Y.S.2d 798, 988 N.E.2d 536 [2013];People v. Thomas, 72 A.D.2d 910, 912, 422 N.Y.S.2d 188 [1979] ). The officers were aware of one male suspect and two victims, all of whom were accounted for at the time of entry. Indeed, the officer who took defendant into custody and directed the second officer to enter the apartment testified that defendant was being detained as a suspect and that he did not have any information that there was someone else in the apartment. Under these circumstances, I cannot conclude that the People have identified any objective facts supporting a conclusion that there was an emergency situation requiring their assistance inside the apartment ( see People v. Harper, 100 A.D.3d 772, 773–774, 954 N.Y.S.2d 127 [2012],lv. denied21 N.Y.3d 943, 968 N.Y.S.2d 5, 990 N.E.2d 139 [2013];People v. Liggins, 64 A.D.3d 1213, 1215–1216, 883 N.Y.S.2d 415 [2009],appeal dismissed16 N.Y.3d 748, 920 N.Y.S.2d 252, 945 N.E.2d 445 [2011];People v. Durden, 119 A.D.2d 766, 767, 501 N.Y.S.2d 174 [1986];compare People v. Paulino, 216 A.D.2d 238, 238, 629 N.Y.S.2d 22 [1995],lv. denied87 N.Y.2d 849, 638 N.Y.S.2d 608, 661 N.E.2d 1390 [1995] [police had reasonable belief that someone inside apartment was in need of assistance when they heard “loud screams” coming from apartment] ).
Although the majority relies on the fact that the officer who entered the apartment testified that he saw people moving in the windows on the second floor of this multi-family house and he did not know if they could access defendant's apartment, that officer cited no basis to believe that the second-floor residents were in danger, posed any imminent threat or were anything other than innocent residents of the upstairs apartments. In order to conduct a “protective sweep,” there must be “ ‘articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene’ ” ( People v. Bost, 264 A.D.2d 425, 426, 693 N.Y.S.2d 235 [1999], quoting Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 108 L.Ed.2d 276 [1990] ). Speculation that someone else may be in the apartment and might pose a threat is an insufficient basis on which to justify a protective sweep ( see People v. Coles, 105 A.D.3d 1360, 1363, 966 N.Y.S.2d 288 [2013];People v. Harper, 100 A.D.3d at 774, 954 N.Y.S.2d 127;People v. Bost, 264 A.D.2d at 426, 693 N.Y.S.2d 235;see also United States v. Carter, 360 F.3d 1235, 1242–1243 [10th Cir.2004] [police cannot infer danger from the fact that a dwelling is occupied]; United States v. Kinney, 638 F.2d 941, 944 [6th Cir.1981], cert. denied452 U.S. 918, 101 S.Ct. 3056, 69 L.Ed.2d 423 [1981] [same] ).
Further, although no weapon was found on defendant, and it was reasonable to assume that it was in the apartment, “[t]he mere fact that police have information that a weapon is located within a suspect's apartment ... does not justify a warrantless entry” ( People v. Lott, 102 A.D.2d 506, 509, 478 N.Y.S.2d 193 [1984], citing Matter of Kwok T., 43 N.Y.2d 213, 220–221, 401 N.Y.S.2d 52, 371 N.E.2d 814 [1977];see People v. Coles, 105 A.D.3d at 1363, 966 N.Y.S.2d 288;compare People v. Adams, 236 A.D.2d 293, 293, 654 N.Y.S.2d 130 [1997],lv. denied90 N.Y.2d 854, 661 N.Y.S.2d 181, 683 N.E.2d 1055 [1997] [warrantless entry was justified where police officers observed children in the apartment and reasonably believed that the defendant had left a loaded pistol there]; People v. Gayle, 79 A.D.2d 717, 717, 434 N.Y.S.2d 732 [1980],affd. 58 N.Y.2d 636, 458 N.Y.S.2d 539, 444 N.E.2d 1003 [1982],cert. denied460 U.S. 1088, 103 S.Ct. 1783, 76 L.Ed.2d 352 [1983] [warrantless entry was justified where police had actual knowledge of presence of second robbery suspect in a motel room with a sawed-off shotgun] ). As additional factors, County Court noted that defendant lived on a busy street near a school and a day-care facility, but these cannot give rise to an emergency in the absence of any reasonable basis to believe that someone was in the apartment who posed an immediate danger.
County Court also concluded that defendant consented to the search, but defendant was clearly in custody at the time and the People—correctly—do not rely on the alleged consent as justification for the warrantless entry ( see generally People v. Gonzalez, 39 N.Y.2d 122, 128–130, 383 N.Y.S.2d 215, 347 N.E.2d 575 [1976] ).
Inasmuch as my view of the evidence leads to the conclusion that the People failed to establish the existence of an emergency justifying the warrantless entry into defendant's apartment, I respectfully dissent from that part of the majority decision. I otherwise concur with the majority's remaining conclusions.