Opinion
KA 02-02651.
February 11, 2004.
Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), rendered April 25, 2002. The judgment convicted defendant, upon a jury verdict, of gang assault in the first degree and assault in the second degree.
DAVID M. PARKS, ITHACA, FOR DEFENDANT-APPELLANT.
Before: PRESENT: PIGOTT, JR., P.J., GREEN, HURLBUTT, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously reversed on the law, the motion to suppress is granted in part and a new trial is granted in accordance with the following Memorandum: County Court erred in denying that part of the motion of defendant to suppress the fruits of a warrantless entry and search of his bedroom by police officers. The evidence at the suppression hearing establishes that defendant's mother consented to the officers' presence in the entryway to the residence. However, "an invitation to enter a dwelling, presumably to answer questions or to find out what the police wanted to inquire about, cannot reasonably be construed as a broad consent for the police to wander at will throughout the entire dwelling" ( People v. Flores, 181 A.D.2d 570, 571; see People v. Russo, 201 A.D.2d 940, 941, lv denied 83 N.Y.2d 857, cert denied 513 U.S. 889). When the officers asked to speak to defendant, his mother told them that she would go upstairs to wake him; she did not direct them to defendant's bedroom ( cf. People v. Kelley, 220 A.D.2d 456, lv denied 87 N.Y.2d 922; People v. Satornino, 153 A.D.2d 595). After defendant emerged from his bedroom and agreed to speak with the officers outside, one of the officers followed defendant back into his bedroom while he got dressed. Upon entering the room, the officer seized a pair of blood-stained shorts from defendant's bedroom. On this record, we conclude that the People failed to meet their heavy burden of establishing that defendant or his mother voluntarily consented to the officer's entry into defendant's bedroom ( see generally People v. Gonzalez, 39 N.Y.2d 122, 127-128; People v. Richardson, 229 A.D.2d 316, appeal dismissed 89 N.Y.2d 933). "Permission to speak with defendant, given while downstairs in a common area of the residence, did not amount to consent for entry into defendant's upstairs bedroom" ( Russo, 201 A.D.2d at 941). Thus, we conclude that the shorts and the statements of defendant to the officers following the illegal entry into his bedroom should have been suppressed ( see People v. Milaski, 62 N.Y.2d 147, 156-157). We further conclude that the erroneous admission of that evidence is not harmless beyond a reasonable doubt ( see People v. Levan, 62 N.Y.2d 139, 145).