People v Reese (David)

[*1] People v Reese (David) 2006 NY Slip Op 50508(U) [11 Misc 3d 137(A)] Decided on March 14, 2006 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 14, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., TANENBAUM and LIPPMAN, JJ
2005-751 S CR.

The People of the State of New York, Appellant,

against

David K. Reese, Respondent.

Appeal from an order of the District Court of Suffolk County, First District (Martin I. Efman, J.), entered April 26, 2005. The order granted defendant's motion to suppress and dismissed accusatory instruments charging defendant with harassment in the second degree and resisting arrest (see 5 Misc 3d 1030[A], 2004 NY Slip Op 51646[U]).

Order reversed on the law, defendant's motion to suppress denied, accusatory instruments charging defendant with harassment in the second degree and resisting arrest reinstated, and matter remanded to the court below for all further proceedings thereon.

The People appeal from an order suppressing evidence and dismissing accusatory instruments charging defendant with harassment in the second degree (Penal Law § 240.26 [1]) and resisting arrest (Penal Law § 205.30) on the basis of a violation of Payton v New York (445 US 573 [1980]). The People contend that no such violation occurred and we agree.

The arresting officer, responding to a report of a stabbing, encountered the victim at the intersection of McArthur Avenue and Montgomery Street in Brentwood, New York. The victim stated that only minutes before, he had been assaulted by a person named Roland at 76 Eisenhower Avenue, about two blocks distant. After obtaining the perpetrator's description, the officer proceeded to that address to "locate . . . Roland." As other officers walked to the back of the house located at said address to determine if there were rear exits, the officer walked to the front door, knocked, and observed defendant through a window. Defendant, whose description matched that given by the victim, was "walk[ing] very heavily with his fists clenched and [*2]shoulders hunched over" as though "agitated." Defendant opened the door whereupon the officer "stepped into the threshold . . . with [his] right foot and asked [defendant] if he was Roland." In response, defendant attempted to close the door and said: "[G]et the fuck out of here." The officer, using his arm to hold the door open, stepped into the house, and again asked defendant if he was Roland. In response, defendant ordered the officer to leave, raised his fists, and "threw a punch" at the officer. The officer informed [*3]
defendant that he was under arrest, and defendant retreated into the house. The officer followed, and with the assistance of the other officers arrested defendant, after a struggle. The officers later determined that defendant was not the person sought in the stabbing.

Payton (445 US 573, supra) "prohibits the police from crossing the threshold of a suspect's home to effect a warrantless arrest in the absence of exigent circumstances" (People v Minley, 68 NY2d 952, 953 [1986]), notwithstanding that the arrest is supported by probable cause (People v Jones, 2 NY3d 235, 239 [2004]). Here, the officer's entry was justified pursuant to the "exigent circumstances" exception to the Payton rule. Exigent circumstances requires consideration, among other matters, of "the gravity of the offense, the suspect's possession of and willingness to use [the weapon] and the likelihood of his attempting to escape" (People v Hallman, 237 AD2d 17, 21 [1997]). In People v Mason (248 AD2d 751, 754 [1998] [internal quotation marks omitted]), the court noted that "[a] finding of exigency requires consideration of the following factors: (1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect is reasonably believed to be armed; (3) a clear showing of probable cause . . .; (4) strong reason to believe that the suspect is in the premises being entered; (5) a likelihood that the suspect will escape if not swiftly apprehended; and (6) the peaceful circumstances of the entry." As the Mason court noted, these factors are not exhaustive, nor are they collectively necessary; they are merely illustrative of situations where the constitutional privacy protection yields to more compelling considerations.

Here, the indicia of exigency are abundant. The officer was confronted with a victim's complaint of a violent crime, a stabbing with a knife, which allegedly occurred at defendant's home, a mere two blocks away and only minutes before. Armed with the victim's description of the assailant, the officer proceeded directly to the location indicated and knocked on the door. Looking through a window, the officer observed defendant, who matched the victim's description of the assailant and was behaving in an agitated manner. The officer reasonably interpreted this conduct as potentially indicative of a consciousness of guilt, elevating the sense of danger to the officers and anyone present therein. In view of the foregoing and given the fact that a dangerous weapon may have been possessed or was near at hand to someone suspected of having used it in a criminal act only minutes before, and the ease with which a knife and bloodstained clothes, the primary evidence of such a crime, can be destroyed or [*4]
otherwise disposed of, the officer's entry was warranted, as was defendant's arrest, notwithstanding that defendant ultimately proved not to be the person sought.

Rudolph, P.J., Tanenbaum and Lippman, JJ., concur.
Decision Date: March 14, 2006