People v Mojica-Sanchez

Annotate this Case
People v Mojica-Sanchez 2011 NY Slip Op 08981 Decided on December 13, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 13, 2011
Mazzarelli, J.P., Andrias, Renwick, Freedman, Manzanet-Daniels, JJ. 6312-
1159/06 6312A 3163/06

[*1]The People of the State of New York, Respondent,

v

Radhames Mojica-Sanchez, Defendant-Appellant.




Robert S. Dean, Center for Appellate Litigation, New York
(Susan H. Salomon of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Yuval
Simchi-Levi of counsel), for respondent.

Judgments, Supreme Court, New York County (Bruce Allen, J.), rendered November 13, 2008, convicting defendant, upon his pleas of guilty, of criminal possession of a controlled substance in the second degree and criminal possession of a weapon in the fourth degree, and sentencing him to an aggregate term of 5½ years, unanimously affirmed.

The court properly denied defendant's suppression motion. The suppression issue turns on whether the warrantless entry into defendant's apartment, made after an informant advised the police that a very large quantity of drugs was present, was justified by exigent circumstances. The suppression hearing was conducted in two stages; after initially denying suppression, the court reopened the hearing to permit a prosecution witness to be questioned about documents that may not have been available to the defense at the initial hearing. Defendant made no arguments after the reopened hearing, and the court subsequently adhered to its original decision.

On appeal, defendant's principal argument is that the reopened suppression hearing revealed new evidence proving that the police had a longer opportunity to obtain a warrant than the time frame established at the initial hearing, and that the police had, at least, sufficient time to obtain a telephone warrant under CPL 690.36. Defendant's arguments at the initial hearing were inadequate to alert the court to this specific issue or permit the People to address it (see People v Tutt, 38 NY2d 1011, 1013 [1976]). Furthermore, defendant has failed to create a record adequate for review of this fact-based claim (see People v Kinchen, 60 NY2d 772 [1983]).

Accordingly, this claim is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. The evidence amply established exigent circumstances, and the testimony at the reopened hearing did not undermine that conclusion. As the hearing court concluded, the police had reason to believe defendant and his accomplices were likely to realize they were under police surveillance, which would lead them to flee or remove the drugs. The new testimony did not establish that the police had additional time to obtain a warrant that was not accounted for at the initial hearing. In any event, even accepting the new time frame posited by defendant on appeal, the evidence still does not [*2]establish that the police had sufficient time to obtain a warrant, by telephone or otherwise, so as to defeat a claim of exigent circumstances (see United States v Malik, 642 F Supp 1009, 1012 [SD NY 1986]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 13, 2011

CLERK

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.