People v Kelly
Annotate this CaseDecided on February 3, 2012
District Court of Suffolk County, First District
People of the State of New York
against
Rashaun Kelly
2010SU012016
Patricia M. Filiberto, J.
Upon all the credible evidence adduced at the hearing, the Court makes the following findings of fact and conclusions of law.
Now retired S.C. Police Officer Michael Pesale was working on March 21, 2010 in uniform and with a partner, P.O. Bajwa, in a marked police car, unit 302, in the Brentwood area. About 5:14 p.m., he received a radio dispatch to respond to 76 Doolittle Street, Islip, New York, Suffolk County, NY An adult male, Campbell, reported a violent dispute between an older sister and young children. Campbell reported that the older sister was beating the children with pots and pans. P.O. Pesale arrived at the location at 5:17 p.m., moments after unit 310, containing Officers Sherlock and Marchese, responded to the scene. All four officers approached the front door. P.O. Sherlock knocked first. He received no response. P.O. Pesale then knocked on the door.
A female, about 20 years old, short and very heavyset, later identified as Roxy Kelly, answered the door. A man, later identified as Rashaun Kelly, was standing behind her. P.O. Pesale stated that Ms. Kelly appeared to be an adult with authority over the house. P.O. Pesale told Ms. Kelly that the police received a 911 call that an older sister was beating young children with pots and pans. The police were at the house to make certain the children were not being injured. Ms. Kelly said, "You're not coming in." Standing at the door, Office Pesale heard the yelling and screaming of young children coming from inside the house, upstairs. Officer Pesale again explained to Ms. Kelly that the reason he wanted to enter the house was to make certain that children were not being hurt. P.O. Pesale said Ms. Kelly was adamant; she went to the bottom of the stairs. Rashaun Kelly ascended to the landing. Ms. Kelly put her arms out over the bottom of the staircase and said, "You nigga ain't going in my house. This is my house." P.O. Pesale could still hear the yelling and screaming. He pushed past Ms. Kelly and ascended to the landing where Rashaun Kelly placed his right hand on the banister and said, "No, you're not going upstairs. This is my house." P.O. Pesale pushed past him and entered a bedroom. He saw three children playing loudly. There was an older person in the room. The children appeared [*2]unharmed, just surprised to see him. He asked if they were o.k. They nodded "Yeah." P.O. Pesale then checked the other bedrooms and the kitchen for children. He did not look for pots and pans. He found no other children.
P.O. Pesale heard P.O. Sherlock and P.O. Marchese tell Rashaun Kelly that he was under arrest for Obstruction of Governmental Administration and told him to take a seat. P.O. Pesale saw that Rashaun Kelly was uncooperative. P.O. Pesale then told Rashaun Kelly that he was under arrest for Obstruction of Governmental Administration and told him to put his hands behind his back. Rashaun Kelly, who is approximately 5'10" and 175 lbs., started pushing the officer, flailing his hands, and shoving the officer. At that point, Roxy Kelly started to pull P.O. Pesale's hands and arms away from Rashaun Kelly and she grabbed the officer's neck. P.O. Pesale pushed Ms. Kelly away. He stated that the scene was chaotic. P.O. Pesale then arrested Rashaun Kelly for Resisting Arrest. The defendant was transported to the precinct.
Although defendant was under 21 years of age at the time of the incident, he did state to P.O. Pesale, "This is my house." The Court finds that the defendant has standing to object to the warrantless search of his residence. See, In re George R., 226 AD2d 645.
A warrantless search may be justified if: the police have reasonable ground to believe an emergency exists, there is some basis, approximating reasonable cause to associate the emergency with the area to be searched. People v. Dallas, 8 NY3d 890 (2007). Here, the officers received a radio dispatch from the 911 operator that an older sister was beating young children with pots and pans. The police responded within three minutes to the incident location. They knocked more than once on the door. A female eventually answered. P.O. Pesale explained to the female a few times that they had received a 911 call that young children were being beaten with pots and pans by an older sister. Their only purpose for coming to the house was to make certain the children were not being hurt. The police searched the upstairs bedrooms, from where they heard yelling and screaming, and they searched the kitchen, certainly another reasonable area to search, since the report involved the use of pots and pans. The court finds that under these circumstances the warrantless search of the residence was justified.
Last, the court finds that the statements made by the defendant were voluntary and spontaneous and not the result of police interrogation or coercion. The statements may be used at trial.
Dated:J. D. C.
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