PEOPLE v. GOODWIN

Reset A A Font size: Print

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Joshua GOODWIN, Defendant-Appellant.

Decided: September 28, 2001

PRESENT:  GREEN, J.P., SCUDDER, KEHOE, GORSKI and LAWTON, JJ. Timothy P. Donaher, for defendant-appellant. Wendy Evans Lehmann, for plaintiff-respondent.

On appeal from a judgment convicting him of murder in the second degree (Penal Law § 125.25[1] ), defendant contends that police illegally searched his residence on two occasions and subsequently illegally arrested him.   He contends that police observations, tangible evidence, and his incriminating statement must be suppressed as the unattenuated by-products of those alleged Fourth Amendment violations.

 The initial entry into defendant's residence was justified by exigent circumstances (see, People v. Knapp, 52 N.Y.2d 689, 695-696, 439 N.Y.S.2d 871, 422 N.E.2d 531;  People v. Clements, 37 N.Y.2d 675, 679, 376 N.Y.S.2d 480, 339 N.E.2d 170, cert. denied sub nom.  Metzger v. New York, 425 U.S. 911, 96 S.Ct. 1507, 47 L.Ed.2d 762;  see also, People v. Love, 84 N.Y.2d 917, 918-919, 620 N.Y.S.2d 809, 644 N.E.2d 1365;  People v. Mitchell, 39 N.Y.2d 173, 177-178, 383 N.Y.S.2d 246, 347 N.E.2d 607, cert. denied 426 U.S. 953, 96 S.Ct. 3178, 49 L.Ed.2d 1191).   The blood evidence and weapon were in plain view therein and thus were lawfully seized by police (see, People v. Brown, 96 N.Y.2d 80, 88, 725 N.Y.S.2d 601, 749 N.E.2d 170).   Although police improperly seized identification evidence from defendant's wallet, the information derived therefrom, identifying defendant as a resident of the apartment being searched, would inevitably have been discovered by police, and in fact subsequently was obtained by them from a variety of independent sources (see generally, People v. Turriago, 90 N.Y.2d 77, 85, 659 N.Y.S.2d 183, 681 N.E.2d 350, rearg. denied 90 N.Y.2d 936, 664 N.Y.S.2d 274, 686 N.E.2d 1369;  People v.. Gethers, 86 N.Y.2d 159, 161-162, 630 N.Y.S.2d 281, 654 N.E.2d 102).   In any event, any error in the admission of such evidence against defendant at trial is harmless beyond a reasonable doubt (see, Chambers v. Maroney, 399 U.S. 42, 52-53, 90 S.Ct. 1975, 26 L.Ed.2d 419, reh. denied 400 U.S. 856, 91 S.Ct. 23, 27 L.Ed.2d 94;  People v. Russo, 201 A.D.2d 940, 941, 607 N.Y.S.2d 520, lv. denied 83 N.Y.2d 857, 612 N.Y.S.2d 389, 634 N.E.2d 990, cert. denied 513 U.S. 889, 115 S.Ct. 234, 130 L.Ed.2d 158);  the written confession by defendant to the attack and his oral inculpatory statements to his friends were admitted in evidence, and defendant testified at trial, admitting his part in the attack.

The subsequent search of defendant's residence was lawfully undertaken based upon the express consent of defendant's live-in girlfriend (see, People v. Adams, 53 N.Y.2d 1, 10-11, 439 N.Y.S.2d 877, 422 N.E.2d 537, rearg. denied 54 N.Y.2d 832, 443 N.Y.S.2d 1031, 427 N.E.2d 1192, cert. denied 454 U.S. 854, 102 S.Ct. 301, 70 L.Ed.2d 148;  see also, Illinois v. Rodriguez, 497 U.S. 177, 179, 110 S.Ct. 2793, 111 L.Ed.2d 148;  People v. Gonzalez, 88 N.Y.2d 289, 294-295, 644 N.Y.S.2d 673, 667 N.E.2d 323).

 Although defendant was unlawfully arrested without probable cause, his confession was not obtained until six hours later, after police had acquired probable cause from various independent sources, thereby dissipating the taint of the illegal arrest (see, Brown v. Illinois, 422 U.S. 590, 603-604, 95 S.Ct. 2254, 45 L.Ed.2d 416;  People v. Smith, 275 A.D.2d 951, 713 N.Y.S.2d 426, lv. denied 96 N.Y.2d 739, 722 N.Y.S.2d 806, 745 N.E.2d 1029;  People v. Sanchez, 278 A.D.2d 889, 718 N.Y.S.2d 505, lv. denied 96 N.Y.2d 763, 725 N.Y.S.2d 289, 748 N.E.2d 1085;  People v. Russell, 269 A.D.2d 771, 704 N.Y.S.2d 395;  People v. Herner, 212 A.D.2d 1042, 1043-1044, 623 N.Y.S.2d 674, lv. denied 85 N.Y.2d 974, 629 N.Y.S.2d 734, 653 N.E.2d 630).

 Defendant additionally contends that County Court erred in refusing to preclude a certain witness from identifying him based on the People's failure to give timely notice pursuant to CPL 710.30.   That witness ultimately did not testify at trial, and thus any error is harmless.

Judgment unanimously affirmed.

MEMORANDUM: