PEOPLE v. MCGEE (2018)

The court properly denied defendant's suppression motion.  Based on the factors discussed in People v. McBride, 14 N.Y.3d 440, 446, 902 N.Y.S.2d 830, 928 N.E.2d 1027 (2010), cert denied 562 U.S. 931, 131 S.Ct. 327, 178 L.Ed.2d 212 (2010), we conclude that exigent circumstances justified the warrantless entry into defendant's apartment.  A visibly upset woman, in ripped and disheveled clothing with marks on her face, informed the police that she had just been repeatedly raped, robbed and beaten.  She detailed the location and time that it occurred and descriptions of her three assailants, giving the police probable cause to believe that she had been raped, robbed, and beaten at defendant's apartment and that the men were still there.  There was also a danger that the men would flee or destroy evidence of the rape, and the police ultimately entered the apartment peaceably.

Regardless of whether the police unlawfully entered defendant's apartment and arrested him without a warrant, he would not be entitled to the suppression of evidence that was not the product of that police action.  A plastic bag of used condoms was abandoned, independently of any unlawful police conduct, because it was discarded from a window when the police had only knocked on the door and had not yet entered (see People v. Ramirez–Portoreal, 88 N.Y.2d 99, 110, 643 N.Y.S.2d 502, 666 N.E.2d 207 [1996] ).  Furthermore, when the victim, who had accompanied the police to the hallway outside defendant's apartment, spontaneously identified him when she saw him through the doorway after the police entered, there was no exploitation by the police of the alleged illegality (see People v. Jones, 2 N.Y.3d 235, 241–242, 778 N.Y.S.2d 133, 810 N.E.2d 415 [2004] ).  In any event, any error in admitting any of the evidence at issue was harmless in light of the overwhelming evidence of defendant's guilt (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).

We perceive no basis for reducing the sentence.