Summary
In People v. Rivera (172 AD2d 1059, 569 NYS2d 316 [4th Dept. 1991]), the court noted that the police "had articulable facts that warranted reasonably prudent officers in believing that the attic of defendant's home might harbor an individual posing a danger to those on the scene" and therefore, a protective sweep was justified.
Summary of this case from People v. WilliamsOpinion
April 26, 1991
Appeal from the Supreme Court, Erie County, Rossetti, J.
Present — Denman, J.P., Boomer, Pine, Lawton and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant contends that the suppression court erred in denying his motion to suppress the evidence seized at his home. Because, as found by the suppression court, the police officers had articulable facts that warranted reasonably prudent officers in believing that the attic of defendant's home might harbor an individual posing a danger to those on the scene, the officers properly conducted a limited protective sweep search of that area in conjunction with their arrest of defendant (see, Maryland v. Buie, 494 U.S. 325; People v. Febus, 157 A.D.2d 380, 384-385, lv granted 76 N.Y.2d 898, appeal dismissed 77 N.Y.2d 835). Further, because the murder weapons were found in plain view during the course of the protective sweep, they were properly seized by the police (see, People v. Febus, supra; see also, People v. Myrtetus, 43 N.Y.2d 758, 759-760). Additionally, we find that there is no merit to defendant's contention that the trial court erred in denying his mid-trial motion for a severance because the codefendant's defense was not in irreconcilable conflict with defendant's defense (cf., People v. Mahboubian, 74 N.Y.2d 174). Defendant further contends that the trial court committed reversible error by failing to strike Officer Pace's unresponsive answer to codefendant's counsel's questioning. Although the officer's answer was unresponsive and should have been stricken, the error was harmless because the proof of defendant's guilt was overwhelming and there is no significant probability that the jury would have acquitted defendant but for this error (see, People v. Crimmins, 36 N.Y.2d 230).
We have reviewed defendant's remaining contentions and find them to be either unpreserved or without merit.