PEOPLE v. EVANS

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. James EVANS, Defendant-Appellant.

Decided: September 30, 2005

PRESENT:  SCUDDER, J.P., MARTOCHE, SMITH, PINE, AND HAYES, JJ. Schiano Law Office, P.C., Rochester (Michael P. Schiano of Counsel), for Defendant-Appellant. R. Michael Tantillo, District Attorney, Canandaigua (Brian D. Dennis of Counsel), for Plaintiff-Respondent.

Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ).   The police responded to defendant's residence after receiving a 911 telephone call from that residence from a woman named Amy who cried “help me” before hanging up.   No one responded when the police arrived at the residence and knocked on the door, but the police could hear movement inside the residence.   At that time, defendant pulled into the driveway in a Chevrolet and explained that he and Amy, his girlfriend, had argued earlier that evening while riding in the GMC vehicle that was now parked in the driveway.   Defendant reported that Amy had fled the vehicle on foot, taking the couple's dogs with her.   The police entered the residence to search for Amy and, while inside the residence, they observed drug paraphernalia in plain view.   The police then obtained a search warrant for the residence and the two vehicles.

 Contrary to the contention of defendant, County Court properly refused to suppress evidence seized by the police from the GMC vehicle and his residence before they obtained the search warrant.   With respect to the vehicle, the police observed drugs in plain view on the dashboard when defendant opened the door to the vehicle to look for Amy's purse (see People v. Vazquez, 229 A.D.2d 997, 645 N.Y.S.2d 672, lv. denied 88 N.Y.2d 1025, 651 N.Y.S.2d 24, 673 N.E.2d 1251;  People v. Carey, 178 A.D.2d 992, 578 N.Y.S.2d 330).   The police then had probable cause to search the vehicle for additional drugs (see People v. Barclay, 201 A.D.2d 952, 607 N.Y.S.2d 531;  Carey, 178 A.D.2d 992, 578 N.Y.S.2d 330).   With respect to the residence, the police were justified in entering the residence based on the emergency exception to the warrant requirement (see generally People v. Molnar, 98 N.Y.2d 328, 331-333, 746 N.Y.S.2d 673, 774 N.E.2d 738).   The record establishes that the police entered the residence to search for Amy, who had made a 911 telephone call from the residence in obvious distress, not to search for contraband (see People v. Thatcher, 9 A.D.3d 682, 684, 779 N.Y.S.2d 818;  People v. Longboat, 278 A.D.2d 836, 718 N.Y.S.2d 761, lv. denied 96 N.Y.2d 802, 726 N.Y.S.2d 380, 750 N.E.2d 82).   Also contrary to defendant's contention, the court properly refused to suppress the drugs found in the Chevrolet upon execution of the search warrant.

 Defendant further contends that the court erred in admitting in evidence photographs of defendant rolling a marihuana cigarette and placing LSD on his tongue.   The record establishes, however, that those photographs were not in fact admitted in evidence.   To the extent that defendant further contends that the court erred in allowing the prosecutor to question a police witness using one of those photographs, that contention is not preserved for our review because defendant failed to object to the question at issue (see CPL 470.05 [2] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   To the extent that defendant contends that the court erred in allowing the prosecutor to cross-examine defendant using those photographs to impeach defendant's credibility, that contention is also unpreserved for our review because defendant failed to raise a Sandoval objection at trial (see generally People v. Allen, 198 A.D.2d 789, 789-790, 604 N.Y.S.2d 378, affd. 84 N.Y.2d 982, 622 N.Y.S.2d 905, 647 N.E.2d 111).   In any event, defendant opened the door to questions regarding his drug use because he testified on direct examination that he used drugs (see People v. Eraso, 248 A.D.2d 243, 671 N.Y.S.2d 215, lv. denied 91 N.Y.2d 1007, 676 N.Y.S.2d 135, 698 N.E.2d 964).

Defendant contends that he was deprived of a fair trial by prosecutorial misconduct during summation.   Defendant failed to object to one of the instances of alleged misconduct and, in any event, reversal is not warranted based on that instance of alleged misconduct or the remaining two instances of alleged misconduct to which defendant objected (see People v. Smith, 306 A.D.2d 861, 863, 762 N.Y.S.2d 721, lv. denied 100 N.Y.2d 599, 766 N.Y.S.2d 175, 798 N.E.2d 359).   The verdict is not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672), and the sentence is not unduly harsh or severe.   We have considered defendant's remaining contentions and conclude that they are without merit.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: