People v. Hallman

OPINION OF THE COURT Tom, J. In the early morning hours of August 1, 1993, several gunshots were fired into the window of an Upper East Side bar, the "Mill Bar”, located on the corner of 83rd Street and York Avenue. At approximately 4:30 a.m., Police Officer Michael Hernandez and his partner, responding to a radio run of shots fired, met bar bouncers Douglas Bantum and Melvin Johnson at the subject location. After viewing the shattered window, the officers recovered a .45 caliber shell casing from the ground; numerous more spent casings were subsequently recovered from the scene. Bantum and Johnson told the officers that a white male wearing a red shirt and khaki pants had just fired shots at them through the bar window and ran south on York Avenue. Officer Hernandez then went across the street to speak to a hot dog vendor. In addition to corroborating the bouncers’ account, the witness gave further descriptive details, that the shooter was "older” and carried a cane, and directed — 19 — the officers across the street to 1555 York Avenue into which the gunman had entered. When the officers arrived in front of that building, a neighborhood resident known to them confirmed that a man wearing a red shirt and khakis had entered that building. He directed the officers to the "second or third floor.” Hernandez and another officer entered the building, ascended to the second floor, walked through a vacant apartment and onto the fire escape. As they started to ascend, they observed an ashtray containing a burning cigarette by an open third floor window, indicating a person’s recent presence near the window. Since the officers pursued an armed man, guns were drawn. As Hernandez ascended to the open window, he shined his flashlight into the darkened apartment. He observed a prone man in boxer shorts on the floor, with an arm concealed under a quilt. He then observed a red shirt and khaki pants on the nearby couch, and a cane slung from a door knob. Hernandez called out "This is the police, do me a favor, get up,” to which no immediate response was made. When defendant responded after another call from the officer, Hernandez entered through the window and withdrew the hand from concealment; no gun was found under the blanket. Defendant asked, "Where’s my nephew.” Hernandez then warned his partner to be careful because someone else might be in the darkened apartment. Concerned for his safety, Hernandez asked where was the gun. Defendant denied having a gun. The gun later was recovered from above a closet’s doorjamb. Moments later, defendant was identified by the bouncers from the bar, who had been escorted to the apartment by police. During postarrest precinct questioning, defendant indicated that, earlier that night, he "had been troubled with some of the problems they had been having at the bar,” including a group of youths breaking into, and smashing the windows of, cars parked on the corner. Waiting until most of the bar patrons had left later in the evening, he fired shots through the bar window and then, prior to reentering his apartment, fired some more shots. Defendant was charged in the indictment with two counts of attempted murder, and one count each of reckless endangerment, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree. At trial, two bartenders indicated that they and another employee had been just inside the window. They ducked as the shots were fired, after which two more shots followed. Bantum — 20 — and Johnson testified that they had followed defendant a short distance as he left the crime scene. Defendant then fired additional shots at them from about 35 feet away, after which they broke oif the pursuit. Police arrived only a minute or so later. Defendant, testifying at trial, indicated that he was a heavy drinker and alluded to past friction between neighborhood residents and bar patrons. Having been woken up by noise from the bar, he loaded his gun with a full clip of six bullets to "take care of’ the noise. After arriving in front of the bar, he proceeded to fire one shot in the air. In his postarrest statement, he indicated that when he saw employees in the bar, he fired two or three shots into its window. Before reentering his building, he fired another shot at bar employees to discourage them from following him. When police arrived at approximately 5:00 a.m., defendant was lying on the floor to alleviate back problems. On April 18, 1994, the trial court found defendant guilty of both weapon possession counts, but acquitted him of the attempted murder and reckless endangerment charges. Defendant subsequently was sentenced as previously noted. On appeal, defendant contends that the officers’ warrantless entry both onto the fire escape and into his apartment was unlawful and, as a result, the physical evidence found in the apartment, his statements and identifications should all have been suppressed. The primary focus of defendant’s argument is on the propriety of police entry onto the fire escape, from which they could view certain incriminating evidence and defendant’s appearance in the apartment. Although this issue is unpreserved (CPL 470.05 [2]; People v Gonzalez, 55 NY2d 887), even if we considered the merits, we would reject it. Our recent ruling in People v Funches (222 AD2d 218, affd 89 NY2d 1005) requires rejection of the challenge to the officers’ arrival on the fire escape and defendant’s expectation of privacy therein. The officers had ample reasonable suspicion, based on the inspection of the crime scene and statements from several eyewitnesses, as a predicate to their ascension to defendant’s floor via the fire escape, in which defendant had only a diminished expectation of privacy (supra), from which vantage they acquired probable cause to make the arrest. Even if reviewed under Federal constitutional standards, a fire escape is deemed to be a common area on which police may be present without the authority conferred by a warrant (United States v Arboleda, 633 F2d 985, 992 [2d Cir 1980], cert denied 450 US 917). — 21 — As to the lawfulness of the police entry into defendant’s apartment through an open window, a warrantless arrest and seizure in a home may be justified on the basis of exigency. A finding of exigency requires consideration of the gravity of the offense, the suspect’s possession of and willingness to use a gun and the likelihood of his attempting to escape (People v Mealer, 57 NY2d 214, cert denied 460 US 1024; People v Burr, 70 NY2d 354, cert denied 485 US 989). Exigency has been found when police, possessing a description, entered the hotel room of a killing suspect who had had a prior gun arrest. The description, the location, the seriousness of the crime and the suspect’s apparent dangerousness all militated in favor of exigency, despite the absence of apparent flight (People v Mealer, supra). Exigent circumstances also have been found to exist when police, responding to an assault, discovered the victim badly beaten and had reason to believe that the perpetrators might be armed and dangerous based on the nature and viciousness of the attack to justify their warrantless entry into the basement apartment to which defendant and his accomplices had fled (People v Graham, 161 AD2d 836, lv denied 76 NY2d 788). The killing of an elderly victim was sufficiently grave, coupled with information that defendant might have a handgun, to constitute exigency, despite only equivocal indications of possible flight (People v Cartier, 149 AD2d 524, lv denied 74 NY2d 737). By contrast, exigency did not exist when police had no reasonable basis to conclude that the burglary suspect was armed, and his escape from the premises, undetected, was unlikely (cf., People v Bero, 139 AD2d 581). Although the present case does not, strictly speaking, involve close pursuit (see, e.g., People v Dominguez, 141 AD2d 833 [robbery / assault / kidnapping suspect’s flight into his house constituted exigency]), it bears relevance that the police response was in close proximity to the shootings. In the case at bar, the facts clearly manifested sufficient exigency to have supported the officers’ warrantless entry into defendant’s apartment as they responded to the crime scene. Here, the officers were responding to a violent crime involving the firing of shots from a high caliber gun into a bar occupied by employees. It was entirely fortuitous that this was not a homicide. Since the shooting had just occurred and the perpetrator ran into a nearby building, the officers had to assume that the gunman was still armed and dangerous. Further, there was ample evidence to support the officers’ belief that defendant was the perpetrator since the gunman was seen entering — 22 — the building in issue and the clothing on defendant’s couch and the cane by the doorway matched the description given by eyewitnesses. All factors in this case provide a clear showing of probable cause. The police response and subsequent entry, by contrast, was relatively nonviolent (see, People v Cruz, 149 AD2d 151). Although, unlike Funches, no handgun was observed in plain view through the window, information possessed by these officers, as in Funches, supported the officers’ fear of imminent violence directed at them or others that would not have been ameliorated as officers applied for and obtained a warrant. In this respect, it bears repeating that defendant was observed lying on the floor of his darkened apartment with his hand, which may have held a weapon, concealed underneath a quilt. Although the dissent pictures a sleeping man, incapable of being an immediate instrumentality of violence, lost to somnolence, that much is speculative. Defendant’s own statement suggests that he was not asleep. Police testimony indicates that defendant only appeared to be asleep—whether feigned or not. Responding police knew that he exactly matched the description of a man who had just fired several shots through a window into what, at most other hours, would be a crowded public meeting place. Moreover, defendant was found in the general location to which the shooter had fled. Under these circumstances, the possibility that defendant might appear to be asleep was less important than the observation that his hand was concealed in the dark under a blanket. While no gun was hidden under the blanket, that fact does not alter the potentially lethal image presented to the officers upon their immediate arrival, underscoring the actual restraint of their response. The gun that eventually was recovered from above a closet’s doorjamb was suppressed, and does not factor into our analysis. The dissent further concludes that exigency is defeated insofar as the defendant could not likely escape. However, the risk of flight is only one factor, and not an exclusive factor, in evaluating exigency, and by relying on a conclusion that defendant would not have fled—which also may be speculative—the dissent overlooks the significant possibility of a violent response by a forewarned and alert suspect. Further, although defendant testified that he had only wanted to make a point, and had not wanted to hurt anyone, even if that testimony is credited, it is irrelevant to the present inquiry. The focus of the analysis is not on whether defendant would have used — 23 — violence against responding police or others, but whether the officers reasonably believed that he might do so, justifying the immediate police entry without the necessity of securing an arrest warrant. Here, the description, the location, the seriousness of the offense and defendant’s apparent dangerousness all militated in favor of the warrantless entry despite the absence of evident flight. The dissent also relies on the passage of a half hour in time to deflate the urgency usually associated with exigency. However, our review of the evidence underscores, rather than undermines, the temporal brevity of the officers’ response. From initial response to eventual apprehension, no gaps in time or in efforts broke the continuity of the fast-breaking investigation and pursuit of a presumably armed, and dangerous, and potentially irrational, perpetrator. Defendant’s claim that the trial court engaged in premature deliberations requires preservation, and was not preserved for appellate review (People v Lloyd, 210 AD2d 163, lv denied 85 NY2d 864). In any event, the court properly proceeded in accordance with CPL 320.20 (3), and did not engage in premature deliberations by indicating that "its analysis of the case was continuous as the evidence unfolded” (supra). We have considered defendant’s remaining contentions and find them to be meritless. Accordingly, the judgment of Supreme Court, New York County (John Bradley, J.), rendered May 10, 1994, convicting defendant, after a nonjury trial, of criminal possession of a weapon in the second and third degrees, and sentencing him to concurrent terms of 2 to 6 years and l1/2 to 41/2 years, respectively, should be affirmed.