PEOPLE v. MOORE (2000)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (D'Emic, J.), rendered January 28, 1997, convicting him of rape in the first degree, sodomy in the first degree, sexual abuse in the first degree, robbery in the third degree, and burglary in the second degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing (Aiello, J.), of those branches of the defendant's omnibus motion which were to suppress physical evidence and statements made by him to law enforcement officials.

ORDERED that the judgment is affirmed.

The hearing court found that the People did not meet their burden of establishing that the police officer's warrantless entry into the defendant's home was made with his consent or justified by exigent circumstances (see, Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639).   Nevertheless, the hearing court denied those branches of the defendant's omnibus motion which were to suppress physical evidence and statements made by him, concluding that the physical evidence and the statements were obtained after he voluntarily consented to a search of his apartment several hours later, and were therefore sufficiently attenuated from his arrest.   The record supports the hearing court's finding (see, People v. Conyers, 68 N.Y.2d 982, 510 N.Y.S.2d 552, 503 N.E.2d 108;  People v. Herner, 212 A.D.2d 1042, 623 N.Y.S.2d 674), and therefore those branches of the defendant's omnibus motion which were to suppress his statements made to law enforcement officials and physical evidence was properly denied.

The defendant's remaining contentions are unpreserved for appellate review and, in any event, without merit.

MEMORANDUM BY THE COURT.