People v. Kilgore

Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), rendered June 27, 2003. The judgment convicted defendant, upon a jury verdict, of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is reversed on the law, that part of the motion seeking to suppress physical evidence is granted, the indictment is dismissed, and the matter is remitted to Onondaga County Court for proceedings pursuant to CPL 470.45.

Memorandum: On appeal from a judgment convicting him, following a jury trial, of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]) and criminal possession of a controlled substance in the fourth degree (§ 220.09 [1]), defendant contends that County Court erred in denying that part of his motion seeking to suppress physical evidence seized by the police following a warrantless entry into his apartment. We agree. It is firmly established that “police officers need either a warrant or probable cause plus exigent circumstances in order to make a lawful entry into a home” (Kirk v Louisiana, 536 US 635, 638 [2002]; see Payton v New York, 445 US 573, 589-590 [1980]; People v Brown, 274 AD2d 941 [2000], affd 95 NY2d 942 [2000]). “Although not to be taken as a rigid formula, the following factors should be considered in determining whether exigent circumstances exist: (1) the gravity or violent nature of the offense; (2) whether there is reason to believe the suspect is armed; (3) whether there is a clear showing of probable cause; (4) whether there is strong reason to believe the subject is in the premises being entered; (5) the likelihood the suspect will escape if not swiftly apprehended; and (6) the peaceful circumstances of the entry” (People v Burr, 124 AD2d 5, 8 [1987], affd 70 NY2d 354 [1987], cert denied 485 US 989 [1988]; see People v Green, 103 AD2d 362, 363-364 [1984], lv denied 64 NY2d 760 [1984]). Although the alleged victim herein reported to the police that she had been raped, there was no indication that defendant was armed. Additionally, the alleged victim told the police that she left defendant’s apartment after defendant had fallen asleep, and thus there was no suggestion that defendant would have escaped if not swiftly apprehended. Under the circumstances of this case, we conclude that the warrantless entry was not justified by exigent circumstances and that the court therefore should have granted that part of the motion of defendant seeking to suppress the physical evidence seized by the police from his apartment following their warrantless entry therein.

We have considered defendant’s remaining contentions and conclude that they are without merit.

All concur except Hayes, J., who dissents and votes to affirm in thefollowing memorandum.