People v. Smith

Court: Appellate Division of the Supreme Court of the State of New York
Date filed: 1997-05-15
Citations: 239 A.D.2d 219, 658 N.Y.S.2d 259, 1997 N.Y. App. Div. LEXIS 5184
Copy Citations
2 Citing Cases
Lead Opinion

Judgment, Supreme Court, New York County (Paul Bookson, J.), rendered March 27, 1995, convicting defendant, after a jury trial, of grand larceny in the third degree, grand larceny in the fourth degree, fourteen counts of offering a false instrument for filing in the first degree, and criminal possession of a forged instrument in the second degree, and sentencing him, as a second felony offender, to concurrent terms of 3Va to 7 years on the conviction of third-degree grand larceny,

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2 to 4 years on the convictions of fourth-degree grand larceny and criminal possession of a forged instrument in the second degree, and V-h to 3 years on each of the convictions of offering a false instrument for filing in the first degree, affirmed.

Defendant’s motion to suppress physical evidence and statements was properly denied. The evidence at the suppression hearing established that on April 27, 1994, at approximately 4:00 p.m., an individual named Sherrill walked into the Midtown South precinct and told Police Officer Joseph Gallo that he had been assaulted earlier in the day by a man he knew as "Will.” Sherrill informed Gallo that Will was staying at 330 West 36th Street, apartment 708, and Sherrill led Gallo there.

When they arrived at the apartment, Gallo observed defendant inside through the wide-open front door. Sherrill pointed out defendant as the man named Will who had assaulted him, and Gallo then knocked on the door and asked defendant about the incident. Defendant admitted having had an argument with Sherrill. Gallo asked defendant for identification, and defendant initially reached for his pocket, but then told Gallo he did not have it.

Defendant then began to walk toward a dresser inside the apartment. Gallo followed defendant into the room to make sure that defendant did not produce a gun or knife from the dresser. Gallo testified that he wanted to see what defendant was doing with his hands, and did not want defendant to have his back to him in case he retrieved a weapon. Gallo’s gun was bolstered at all times, and he never touched defendant.

Defendant removed one card from his wallet, and then replaced it. He then produced a New York City welfare identification card, bearing his photograph and the name "Frank Mills.” Gallo asked him to remove the first card, which turned out to be another welfare identification card, with defendant’s photo and the name "William Smith.” Gallo asked defendant what "the deal” was, and defendant responded that the latter card was "old” and "no good.” Defendant was then placed under arrest.

Defendant claims that the two identification cards should be suppressed because they were recovered pursuant to a warrantless entry and search of his home (see, Payton v New York, 445 US 573). However, the record supports the motion court’s determination that the defendant implicitly consented to Gallo’s entry. A defendant’s consent may be established by conduct as well as by words (People v Satornino, 153 AD2d 595). Here, defendant engaged in a discussion with the officer from inside

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the apartment; he complied with the officer’s request for identification without hesitation and not even the lightest objection to the officer’s entry or continued presence in the apartment was raised. A consensual entry is a compelling inference from these facts (see, People v Davy, 236 AD2d 308; People v Gonzalez [Iris], 222 AD2d 453, lv denied 88 NY2d 848; People v Washington, 209 AD2d 817, lv denied 85 NY2d 944; People v Schof, 136 AD2d 578, lv denied 71 NY2d 1033; but see, People v Richardson, 229 AD2d 316, lv granted 88 NY2d 1026).

In light of the above conclusion, it is unnecessary for us to determine whether Gallo’s safety concerns alone would constitute exigent circumstances, or otherwise render the warrant-less entry constitutionally permissible.

Denial of suppression of defendant’s statements made to Gallo in the apartment was also proper, as defendant was clearly not in police custody at the time they were made (see, People v Yukl, 25 NY2d 585, 589, cert denied 400 US 851).

Defendant’s claims pursuant to Batson v Kentucky (476 US 79) are meritless since the striking of three African-American jurors in the first two rounds of jury selection, without more, is wholly inadequate to establish a prima facie case under Batson (see, People v Jenkins, 84 NY2d 1001, 1003; People v Childress, 81 NY2d 263, 267; People v Lynn, 224 AD2d 294, lv denied 88 NY2d 881). Concur—Williams, J. P., Mazzarelli and Andrias, JJ.