        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1061
KA 13-01519
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RAJSHEEM J. RICHARDSON, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


LAW OFFICES OF JOSEPH D. WALDORF, P.C., ROCHESTER (JOSEPH D. WALDORF
OF COUNSEL), FOR DEFENDANT-APPELLANT.

CINDY F. INTSCHERT, DISTRICT ATTORNEY, WATERTOWN (HARMONY HEALY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Jefferson County Court (Kim H.
Martusewicz, J.), rendered May 24, 2013. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a
controlled substance in the third degree.

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

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of criminal possession of a
controlled substance in the third degree (Penal Law § 220.16 [1]) and,
in appeal No. 2, he appeals from a judgment convicting him upon his
plea of guilty of criminal possession of a controlled substance in the
third degree (id.) involving a separate incident. County Court
sentenced defendant to concurrent determinate terms of incarceration.

     Contrary to defendant’s contention in appeal No. 1, the court
properly refused to suppress evidence, i.e., cocaine, seized from an
apartment that he leased as a tenant. It is undisputed that the
police entered the apartment without a warrant but that no search was
conducted until a warrant was obtained. We conclude that the court
properly determined that the police had probable cause to believe that
a crime was being committed in the apartment and that exigent
circumstances existed for the warrantless entry into the apartment
(see generally People v McBride, 14 NY3d 440, 445, cert denied 562 US
931).

     The police received a complaint that there was a strong odor of
marijuana coming from a certain apartment, and that the odor was
causing the complainant’s children to feel ill. In response, a police
officer knocked on the door of the apartment to investigate whether it
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                                                         KA 13-01519

was the source of the odor. The door was opened by a man
(codefendant) who was known to the officer. When the officer told
codefendant that he needed to talk to him about the odor of marijuana,
which was much stronger after the door was opened, codefendant tried
to slam the door, and the officer prevented him from doing so by
placing his foot in the threshold. He and other officers thereafter
entered the apartment, and he observed two other occupants and what
appeared to be a large amount of cocaine on the kitchen counters.
Defendant was not at the apartment. The officer left the apartment to
obtain a warrant and, after doing so, the evidence was seized and the
occupants were arrested.

     Less than two hours before he entered defendant’s apartment, the
same officer was conducting surveillance of the apartment building for
suspected drug trafficking, and he observed defendant enter the
building by a door that led to the apartment. Shortly thereafter, the
officer observed a man known to him to have a revoked driver’s license
exit the building from the door by which defendant entered. After the
man drove away, the officer arrested him for unauthorized operation of
a motor vehicle, and the man told the officer that he had purchased
cocaine from codefendant, whom he referred to by a nickname, at an
apartment that matched the location of the apartment leased by
defendant. The man was thereafter picked up at the scene of his
arrest by the mother of defendant’s child, a person also known to the
officer.

     The officer testified that he did not seek a search warrant
before knocking on the door because he was not “100% certain” that the
odor was emanating from the apartment, and because the man he arrested
refused to cooperate with respect to a warrant application, and he did
not consider the man to be a sufficiently reliable source for purposes
of seeking a warrant.

     The court properly determined that the police had the right to
knock on the door to investigate the complaint of the odor of
marijuana (see People v Kozlowski, 69 NY2d 761, 762-763, rearg denied
69 NY2d 985; cf. Florida v Jardines, ___ US ___, 133 S Ct 1409, 1414-
1415). After codefendant opened the door, the officer then had
probable cause to believe both that there was marijuana in the
apartment, based upon the strong odor that emanated therefrom, and
that codefendant had sold cocaine to the man the officer had arrested.
The court properly determined that exigent circumstances arose when
codefendant attempted to slam the door inasmuch as it “is well known
that persons who engage in drug trafficking will often attempt to
dispose of the narcotics or escape” (People v Brown, 274 AD2d 941,
942, affd 95 NY2d 942; see People v Ellison, 46 AD3d 1341, 1343, lv
denied 10 NY3d 862). “Courts have long recognized that the Fourth
Amendment is not violated every time police enter a private premises
without a warrant. Indeed, though warrantless entries into a home are
‘presumptively unreasonable’ . . . , ‘[t]he touchstone of the Fourth
Amendment is reasonableness’—not the warrant requirement” (People v
Molnar, 98 NY2d 328, 331). We conclude that, here, both probable
cause and exigent circumstances existed “to justify a warrantless
entry” (McBride, 14 NY3d at 445; cf. People v Hunter, 92 AD3d 1277,
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                                                         KA 13-01519

1280).

     We reject defendant’s further contention in appeal No. 1 that his
Alford plea was legally and factually insufficient because he denied
that he saw cocaine in the apartment on the day in question and
because he denied that he knew that the occupants were selling drugs.
Defendant admitted that he sublet the apartment to a person he knew to
be a drug dealer, that he was at the apartment on the day in question
and that, within the two weeks prior to the day in question, he had
seen implements in the apartment used to make crack cocaine.
Defendant also stated that he was accepting the plea offer of a
sentence of 5½ years of imprisonment with three years of postrelease
supervision, to run concurrently with the 5½ year term of imprisonment
imposed in appeal No. 2, in order to avoid the possibility of being
convicted of the more serious count charged in the indictment or
receiving a longer sentence. The People made an offer of proof that,
less than two hours after defendant was at the apartment, the police
seized in excess of three pounds of cocaine in plain view, as well as
implements to make crack cocaine; that defendant had been observed
entering and leaving the building on several occasions by police
officers conducting surveillance; that there were no beds or other
furnishings to indicate that people lived in the apartment and that,
instead, it appeared to be used to store and sell controlled
substances; and that there were several recorded jail telephone
conversations between codefendant and defendant that implicated
defendant. It is axiomatic that, “ ‘[i]n New York, [an Alford] plea
is allowed only when, as in Alford itself, it is the product of a
voluntary and rational choice, and the record before the court
contains strong evidence of actual guilt’ ” (People v Richardson, 72
AD3d 1578, 1579; see People v Hill, 16 NY3d 811, 814). We conclude
that both conditions are present on this record (see People v Cruz, 89
AD3d 1464, 1465, lv denied 18 NY3d 993; cf. Hill, 16 NY3d at 814;
Richardson, 72 AD3d at 1579).

     In light of our determination in appeal No. 1, there is no basis
to reverse the judgment in appeal No. 2 and vacate defendant’s plea of
guilty (see People v Roosevelt, 125 AD3d 1452, 1455, lv denied 25 NY3d
1076; cf. People v Fuggazzatto, 62 NY2d 862, 863).


                                                Frances E. Cafarell




Entered:   October 2, 2015
                                                Clerk of the Court
