PEOPLE v. GARRIDO

Reset A A Font size: Print

Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Juan GARRIDO, Defendant-Appellant.

Decided: November 28, 2006

MAZZARELLI, J.P., FRIEDMAN, NARDELLI, GONZALEZ, CATTERSON, JJ. Robert S. Dean, Center for Appellate Litigation, New York (David J. Klem of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Dimitri Maisonet of counsel), for respondent.

Judgment, Supreme Court, Bronx County (John S. Moore, J.), rendered May 7, 2003, as amended September 28, 2005, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the first degree, and sentencing him to a term of 10 years, and order, same court and Justice, entered on or about September 28, 2005, which denied defendant's CPL article 440 motion seeking to reduce his conviction to a class A-II felony, unanimously affirmed.

The court properly denied defendant's suppression motion.   There is no basis for disturbing the court's credibility determinations, which are supported by the record (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ).   Following an undercover officer's negotiations with defendant, during which the officer saw a large amount of drugs in defendant's apartment, the police lawfully approached the apartment in hopes that defendant would come out, at which point they intended to arrest him and then secure the apartment until a search warrant could be obtained.   When it became clear that defendant had seen the officers, exigent circumstances existed for a warrantless entry.   We do not find that the police created an artificial exigency (see United States v. MacDonald, 916 F.2d 766, 770-773 [2d Cir.1990], cert. denied 498 U.S. 1119, 111 S.Ct. 1071, 112 L.Ed.2d 1177 [1991];  People v. Kelly, 261 A.D.2d 133, 134, 689 N.Y.S.2d 470 [1999], lv. denied 94 N.Y.2d 824, 702 N.Y.S.2d 595, 724 N.E.2d 387 [1999];  compare People v. Levan, 62 N.Y.2d 139, 146, 476 N.Y.S.2d 101, 464 N.E.2d 469 [1984] ).   Once inside, the police properly conducted a security sweep to make certain no one else was in the apartment who could present a threat (see Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 [1990] ).   As part of this sweep, it was reasonable to look in a closet to see if anyone was hiding inside, and drugs were properly discovered in plain view as a result.

Defendant was resentenced from a term of 15 years to life to a term of 10 years pursuant to the Drug Law Reform Act (L. 2004, ch. 738), and we perceive no basis for a further reduction.   Defendant's argument that his conviction should be reduced to second-degree possession is without merit (People v. Utsey, 7 N.Y.3d 398, 822 N.Y.S.2d 475, 855 N.E.2d 791 [2006];  People v. Quinones, 22 A.D.3d 218, 801 N.Y.S.2d 595 [2005], lv. denied 6 N.Y.3d 817, 812 N.Y.S.2d 456, 845 N.E.2d 1287 [2006] ).