People v. TheodorePeople v. Theodore
THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v RASHID THEODORE, Appellant. [980 NYS2d 148]—
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.), rendered August 7, 2013, convicting him of criminal possession of a weapon in the second degree (two counts) and criminal possession of marijuana in the fifth degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing (Paynter, J.), of that branch of the defendant‘s omnibus motion which
Ordered that the judgment is reversed, on the law, that branch of the defendant‘s omnibus motion which was to suppress physical evidence is granted, the indictment is dismissed, and the matter is remitted to the Supreme Court, Queens County, for further proceedings consistent with
On September 29, 2011, Detective Gregory Anderson of the 113th Precinct of the New York City Police Department (hereinafter the NYPD) received a radio call directing him to respond to a residential fire at 123-06 Sutphin Boulevard in Jamaica, Queens. The dispatcher advised him that a child had placed the call to the 911 emergency operator, and had reported the location as 123-06 Rockaway Boulevard, but that the firefighters and the police officers from the 106th Precinct who rеsponded to that location did not find a fire. Detective Anderson, along with an NYPD sergeant, responded to 123-06 Sutphin Boulevard, and found neither a residence nоr a fire, but only a vacant lot along the entire side of that block where even-numbered addresses would have been situated. Detective Anderson circled the block once or twice, looking for the closest house. Across the street from 123-06 Sutphin Boulevard were four houses, and Detective Anderson determined that 123-09 Sutphin Boulevard was the closest one. He did not see or smell any smoke or fire coming from 123-09 Sutphin Boulevard. Detective Anderson did not ring the doorbell at that house. Instead, he walked along a walkway on the left side of the house for about 30 feet before reaching the rear yard. He made a right turn and walked оver to the rear yard. From there, Detective Anderson could see, at the other end of the yard, a car parked at the end of a driveway. The defendant was inside the car, and Detective Anderson approached him. As he neared the vehicle, Detective Anderson saw the defendant holding a cigаr-shaped object that turned out to be a cigar with the tobacco removed and marijuana substituted in its place, commonly known as a “blunt.” Detective
The defendant was charged with two counts of сriminal possession of a weapon in the second degree and one count of criminal possession of marijuana in the fifth degree. The defendant mоved, inter alia, to suppress the physical evidence, but, after a hearing, the Supreme Court denied that branch of the motion. The defendant later pleaded guilty to the entire indictment, and was sentenced.
A search occurs, thereby triggering the protection of the
Consideration of these factors in connection with the evidence in this record, including two photographs оf a portion of the subject premises, compels us to conclude that the defendant‘s rear yard was within the curtilage of the home. The rear yard was in сlose proximity to the home, shielded from view by those on the street, and within the natural and artificial barriers enclosing the home. This physical arrangement made manifest
Under the emergency exception, the pоlice may make a warrantless entry into a protected area if (1) they have reasonable grounds to believe that there was an emergency at hand and an immediate need for their assistance for the protection of life or property; (2) the search was not primarily motivated by an intent to arrest and seize evidence; (3) and there was some reasonable basis, approximating probable cause, to associate the emergenсy with the area or place to be searched (see People v Mitchell, 39 NY2d 173, 177 [1976]; People v Rodriguez, 77 AD3d at 283; People v Desmarat, 38 AD3d 913, 914-915 [2007]). The United States Supreme Court has determined that the second prong regarding the subjective intеnt of the police is no longer relevant under the
Since Detective Anderson did not have a lawful vantage point when he saw the defendant holding a “blunt,” the People may not rely on the plain view doctrine to justify the seizure of the gun, marijuana, and the “crusher,” sincе an essential predicate of the plain view doctrine is that the officer had the right to be in a position to have the view of the incriminating evidence (see Horton v California, 496 US 128, 136 [1990]; People v Machovoe, 242 AD2d 898 [1997]; People v Abruzzi, 52 AD2d at 502; Katz and Shapiro, 1-15 New York Suppression Manual § 15.03).
Accordingly, that branch of the defendant‘s omnibus motion which was to suppress physical evidence should have been granted. Since, without that evidence, the People would be unable to adduce legally sufficient evidence to prove the defendant‘s guilt of the crimes charged, the indictment should have been dismissed. Consequently, the matter must be remitted to the Supreme Court, Queens County, for further proceedings consistent with
(February 19, 2014)