PEOPLE v. WARD (2019)

DECISION & ORDER

ORDERED that the judgment is affirmed.

On July 27, 2013, the defendant allegedly shot and killed the victim outside a nightclub following a verbal altercation.  The defendant was subsequently arrested while at his sister's apartment.  After a jury trial, the defendant was convicted of murder in the second degree and criminal possession of a weapon in the second degree.

On appeal, the defendant contends that the Supreme Court should have granted that branch of his omnibus motion which was to suppress his statements to law enforcement officials because the arresting officers violated New York's so-called “ ‘knock and announce’ statute” (People v. Dyla, 142 A.D.2d 423, 435, 536 N.Y.S.2d 799;  see CPL 120.80[4], [5];  140.15[4];  People v. Riddick, 45 N.Y.2d 300, 314, 408 N.Y.S.2d 395, 380 N.E.2d 224, revd on other grounds 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639;  People v. Barnhill, 34 A.D.3d 933, 823 N.Y.S.2d 301;  People v. Clinton, 67 A.D.2d 626, ––– N.Y.S.2d ––––;  People v. Reiff, 64 A.D.2d 719, 407 N.Y.S.2d 534).  However, that particular contention is unpreserved for appellate review (see CPL 470.05[2];  People v. De Capua, 193 A.D.2d 1109, 600 N.Y.S.2d 666;  People v. Jennings, 94 A.D.2d 802, 463 N.Y.S.2d 53) since, at the suppression hearing, the defendant's argument was that the police officers made a warrantless entry into the apartment without consent (see People v. Payton, 45 N.Y.2d 300, 308, 408 N.Y.S.2d 395, 380 N.E.2d 224).  In any event, the contention is without merit.  The officers had an arrest warrant for the defendant's sister and provided her with “an opportunity to respond to the demand for admittance” (People v. Riddick, 45 N.Y.2d at 314, 408 N.Y.S.2d 395, 380 N.E.2d 224;  see People v. Barnhill, 34 A.D.3d at 934, 823 N.Y.S.2d 301;  cf.  People v. Frank, 35 N.Y.2d 874, 363 N.Y.S.2d 953, 323 N.E.2d 191).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contention is unpreserved for appellate review (see CPL 470.05[2] ) and, in any event, without merit.

MASTRO, J.P., COHEN, MALTESE and CHRISTOPHER, JJ., concur.