PEOPLE v. WHITE (1999)

Judgment, Supreme Court, New York County (Colleen McMahon, J., at suppression hearing;  William Leibovitz, J., at jury trial and sentence), rendered June 25, 1996, convicting defendant of three counts of robbery in the second degree and one count of criminal possession of a weapon in the third degree, and sentencing him, as a second violent felony offender, to three concurrent terms of 71/212 to 15 years concurrent with a term of 31/212 to 7 years, unanimously affirmed.

 The record supports the hearing court's findings (169 Misc.2d 295, 645 N.Y.S.2d 733) that once the police lawfully entered the main portion of the apartment after obtaining the consent of the lessee, they were authorized to conduct a protective sweep of defendant's separately subleased room, based on their reasonable belief that one or more of the perpetrators of an armed robbery might be locked inside with a rifle (see, Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276;  United States v. Patrick, 294 U.S.App.D.C. 393, 959 F.2d 991 [D.C. Cir.];  People v. Paez, 202 A.D.2d 239, 608 N.Y.S.2d 450, lv. denied 84 N.Y.2d 871, 618 N.Y.S.2d 16, 642 N.E.2d 335;  People v. Cornielle, 172 A.D.2d 681, 568 N.Y.S.2d 827, lv. denied 78 N.Y.2d 964, 574 N.Y.S.2d 943, 580 N.E.2d 415).  We agree with the hearing court (169 Misc.2d 295, 302, 645 N.Y.S.2d 733, supra) that a protective sweep is not required to be incident to an arrest.   Once lawfully in defendant's room, the police properly seized the rifle discovered in plain view (People v. Paez, supra ).   We have considered and rejected defendant's remaining arguments, including those grounded in State constitutional law.

MEMORANDUM DECISION.