The People of the State of New York, Respondent,
v.
David Johnson, Appellant.
Court of Appeals of the State of New York.
Decided March 29, 1994.James J. O'Rourke, Elmont, for appellant.
Robert M. Morgenthau, District Attorney of New York County, New York City (Gregory H. Mansfield of counsel), for respondent.
Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur.
*833MEMORANDUM.
The order of the Appellate Division should be affirmed.
The Appellate Division correctly concluded that Supreme Court erred in suppressing the contraband on the basis of the record before it. Although defendant testified during the hearing that he never had his hands on the contraband before the arrest and that the police had planted the contraband on him after returning to his location from the apartment's living room, defense counsel never explained how these factual claims affected the legality of the officers' search of the apartment under the Fourth Amendment. At best, defense counsel's hearing argument was that these facts somehow demonstrated a lack of probable cause for defendant's postsearch arrest.
The Appellate Division was also correct when it held that the trial court should not have decided the ultimate issue in *834 the case whether defendant was actually in possession of the contraband. The issue before the court in the Mapp hearing was limited to whether the evidence was obtained in violation of defendant's constitutional rights, not whether the contraband found in the apartment belonged to someone other than defendant.
Finally, with respect to whether the police's entry into defendant's apartment was proper, the only relevant issue raised by defendant at the suppression hearing, the record supports the Appellate Division's conclusion that the detectives properly entered defendant's apartment in pursuit of a suspect in a shooting, who was known to them by sight (see, People v Burr, 70 N.Y.2d 354, 360-361, cert denied 485 U.S. 989). The additional finding made by the Appellate Division that the police were justified in conducting a security sweep of the apartment (see, Maryland v Buie, 494 U.S. 325) is beyond our power to review, since the question was neither raised at the hearing by defense counsel nor decided by the hearing court upon appropriate protest (see, CPL 470.05 [2]).
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed in a memorandum.