People v Dorcinvil

[*1] People v Dorcinvil 2009 NY Slip Op 52105(U) [25 Misc 3d 1215(A)] Decided on October 20, 2009 Supreme Court, Kings County D'Emic, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 20, 2009
Supreme Court, Kings County

The People of the State of New York

against

Jacques Dorcinvil



5106-07



Attorney for the People:

ADA Elisa Paisner

Office of District Attorney, Kings County

350 Jay Street

Brooklyn, NY 11201

(718)-250-4915

Attorney for the Defendant:

Stanford Bandelli, Esq.

1611 Voorhies Avenue

Brooklyn, NY 11235

(718)-934-7300

Matthew J. D'Emic, J.

Defendant is charged with, among other things, Murder in the Second Degree. He moves to controvert the search warrant and suppress the evidence seized pursuant to the warrant's execution by police officers.

Motion denied.

The court has examined the search warrant and supporting affidavit and concludes that the warrant was lawfully obtained. The police responded to a 911 call indicating that there were screams and bloody hand prints on the wall of the location known as 2665 Bedford Avenue. When they arrived they found the victim, Claudette Marcellus, outside bleeding from wounds to her head and neck with a bloody trail leading to apartment A4.

Around an hour later a neighbor told the police that the victim had a 12 year old son who resided in the apartment. A 911 caller who was also interviewed told police of hearing a woman and a child scream accompanied by loud crashing sounds. However, the door to apartment A4 was locked and the police had to wait forty minutes for the Emergency Service Unit to break down the door. Upon gaining entry they found the 12 year old, Brian Marcellus, in serious [*2]condition with multiple stab wounds.

Given the totality of the circumstances the police were faced with an exigent situation. There was a mortally stabbed victim outside the location with blood leading to the apartment. These facts, along with information that a child or an armed individual might still be in the apartment, were enough to establish an emergency making a warrantless search imperative (People v. Hodge, 44 NY2d 553).

Defendant's claim that the search warrant application contained a material error is not persuasive, since the complete and correct address is recorded plainly on the application for the search warrant and its supporting affidavit. These documents give more than one detailed description of the building as well as the location of the apartment within the building. The fact that the rear yard is mentioned in the last paragraph of the affidavit does not diminish the accuracy and specificity of the warrant which provided the court with probable cause to believe there was forensic evidence at the location (People v Graham, 220 AD2d 769). In any event, no property was recovered from the rear yard.

Furthermore, defendant has no standing to challenge the validity of the search warrant since the court issued a full Order of Protection for the victim and her son in effect from March 19, 2007 until May 9, 2007. A defendant who is "barred from the premises by a court order... had neither a legitimate expectation of privacy therein nor standing to challenge the police entry in the house" (People v Robinson, 205 AD2d 836).

The People have offered substantial proof of exigency overcoming the burden that warrantless searches are presumptively unreasonable. The defendant's lack of standing to controvert the warrant has also been established and the court finds that there was no material error in the application for the search warrant.

For these reasons any evidence seized as a result of the warrantless entry or the valid search warrant will not be suppressed.

_____________________

Matthew J. D'Emic

J.S.C.