Opinion
Argued November 20, 1997
Decided December 22, 1997
APPEAL, by permission of a Justice of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered December 31, 1996, which affirmed a judgment of the Supreme Court (Frederic S. Berman, J., at suppression hearing; Bonnie G. Wittner, J., at jury trial), rendered in New York County upon a verdict convicting defendant of attempted murder in the second degree.
Karen M. Kalikow, New York City, and Daniel L. Greenberg for appellant.
Robert M. Morgenthau, District Attorney of New York County, New York City ( Hilary Hassler and Mark Dwyer of counsel), for respondent.
Testimony educed at the suppression hearing and at trial revealed that on December 21, 1992, defendant approached the victim for the purpose of buying crack cocaine; that two days later, defendant, believing he had been cheated in the drug deal, began an argument with the victim, after which the victim and his friends beat defendant; that defendant left, vowing to return; that later on that same date, defendant shot the victim from a distance of three feet in front of several witnesses; that the victim was rushed to a hospital, where he told a detective that he knew his attacker, although he could not remember his name, but that his attacker lived in a building which he described in sufficient detail to allow the police to determine its address; that the police contacted the police department's Emergency Service Unit (ESU), which in turn dispatched a team of officers; that at least five ESU officers knocked, or kicked, at the door of defendant's apartment; that defendant's live-in companion acknowledged the knock through a closed door and was told it was the police and that they wanted to talk to her about a shooting that occurred down the block; that the companion subsequently opened the door a few inches and said she knew nothing about a shooting; that an ESU officer looked inside the apartment through the partially opened door and saw defendant walk across the living room, lift up a small child, and then cross back to the other side of the room; that another officer repeated that he wished to speak to the companion about a shooting, at which point she walked over to the defendant, leaving the door wide open; that the police, construing this as an invitation to enter the apartment and continue the conversation, did so; that the companion, realizing the police had entered the apartment behind her, began screaming for the officers to leave and demanded to know if they had a warrant; that an officer requested that the companion calm down and, approximately 30 seconds after they had entered, the officer directed the visibly armed ESU officers to leave the apartment; that a detective then entered the apartment and saw the ESU officer talking to the companion and defendant, the latter of whom was holding a small child; that in response to the companion's questions concerning the reason for the police presence, the detective explained that there had been a shooting nearby and that witnesses had described defendant; that the detective then asked defendant if he would come to the precinct to clarify the situation; that defendant was not restrained, given his rights, questioned, or threatened in any manner; that defendant agreed, said "I'll get dressed", and later accompanied the officers to the precinct; and that defendant was subsequently identified in a lineup at the precinct and was then arrested.
Ruling on defendant's motion to suppress, Supreme Court found that the companion opened the door to the apartment and then walked away from it; that while the police entry may have been somewhat unusual, it was proper; that no arrest was made of defendant in his home; that the police left the apartment when they were told to do so; that defendant proceeded to the police station voluntarily with the police; that defendant was not in custody or in any way restrained, and that no force was used.
The majority at the Appellate Division concluded that the facts amply supported the findings of the hearing court, which concluded that the officers believed they had tacit approval to enter the apartment, that the police left when they were asked, that defendant was never placed in custody in the apartment, and that defendant voluntarily accompanied the police to the precinct.
The dissent at the Appellate Division concluded that the testimony of the People's witnesses at the hearing failed to demonstrate the propriety of the police conduct in having a team of eight heavily armed and equipped officers barge into defendant's home, without a warrant, and arrest him; that it certainly cannot be said from a fair reading of the record that the People have established the so-called consent to enter; that the record makes plain that defendant was, for all practical purposes, placed in police custody when the team of officers barged into his apartment, without a warrant, and found him unclothed in his living room; and that the record does not support a finding that the warrantless entry in this case was justified by exigent circumstances.
People v Brown, 234 A.D.2d 211, affirmed.
Order affirmed. This appeal involves only mixed questions of law and fact. As there is support in the record for the Appellate Division's resolution of these questions, these issues are beyond this Court's further review.
Concur: Chief Judge KAYE and Judges TITONE, BELLACOSA, SMITH, LEVINE, CIPARICK and WESLEY.