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

1230
KA 14-00230
PRESENT: PERADOTTO, J.P., CARNI, CURRAN, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MALQUAN R. JUNIOUS, ALSO KNOWN AS PIG,
DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER, THE ABBATOY LAW FIRM,
PLLC (DAVID M. ABBATOY, JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.

MALQUAN R. JUNIOUS, DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Victoria M.
Argento, J.), rendered December 19, 2013. The judgment convicted
defendant, upon a jury verdict, of attempted assault in the first
degree, criminal possession of a weapon in the third degree and
criminal possession of a weapon in the fourth degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of attempted assault in the first degree (Penal
Law §§ 110.00, 120.10 [1]), criminal possession of a weapon in the
third degree (§ 265.02 [1]) and criminal possession of a weapon in the
fourth degree (§ 265.01 [4]). Defendant is convicted of firing a
shotgun toward a woman, who was living with his uncle in a house owned
by defendant’s grandmother, after defendant and his uncle had engaged
in a physical altercation. We reject defendant’s contention in his
main and pro se supplemental briefs that the verdict on the attempted
assault count is against the weight of the evidence. Viewing the
evidence in light of the elements of the crime of attempted assault in
the first degree as charged to the jury (see People v Danielson, 9
NY3d 342, 349), we conclude that the evidence established that
defendant intended to cause serious physical injury to the woman by
means of a deadly weapon (see § 120.10 [1]), and that he engaged in
conduct that tended to effect the commission of the crime (see
§ 110.00), by firing the shotgun toward her. Even assuming, arguendo,
that an acquittal would not have been unreasonable on the ground that
defendant’s intended victim was his uncle and not the woman, as he
contends, we nevertheless conclude that the jury did not fail to give
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                                                         KA 14-00230

the evidence the weight it should be accorded (see generally People v
Bleakley, 69 NY2d 490, 495). We therefore conclude that “the jury was
justified in finding the defendant guilty beyond a reasonable doubt”
(Danielson, 9 NY3d at 348).

     We also reject defendant’s contention in his main and pro se
supplemental briefs that County Court erred in refusing to suppress
the gun. The court credited the testimony of the police witnesses
that, upon responding to a call of shots fired in a residence, several
people were outside the residence, some of the people directed the
police to the rear of the house where the man with the gun had gone,
one officer observed a man enter a garage and, when the police
demanded that any occupants exit the garage, an unarmed man exited.
The man who exited was defendant but had not yet been identified as
the shooter. One of the police witnesses testified that they entered
the garage to see if there was anyone else inside who might be armed
or injured. While walking in the loft of the garage, that officer saw
a portion of the gun protruding from the eaves.

     It is axiomatic that “a warrantless search of an individual’s
home is per se unreasonable and hence unconstitutional” in the absence
of exceptional circumstances (People v Knapp, 52 NY2d 689, 694). We
conclude that the People established the requisite elements of the
emergency doctrine (see People v Dallas, 8 NY3d 890, 891, citing
People v Mitchell, 39 NY2d 173, 177-178, cert denied 426 US 953).
First, the police had reasonable grounds to believe that there was an
emergency at hand and that there was an immediate need for their
assistance for the protection of life (see Dallas, 8 NY3d at 891).
“ ‘[T]he requirement of reasonable grounds to believe that an
emergency existed must be applied by reference to the circumstances
then confronting the officer[s], including the need for a prompt
assessment of sometimes ambiguous information concerning potentially
serious consequences’ ” (People v Gibson, 117 AD3d 1317, 1319, affd 24
NY3d 1125). Based upon the information available to the police, they
were aware that there was a suspect, not yet identified, who could be
armed and was willing to use a gun (see People v Stevens, 57 AD3d
1515, 1515-1516, lv denied 12 NY3d 822). Second, the People
established through the testimony of a police witness that they
entered the garage to determine whether there were any armed or
injured occupants and thus established that the search was not
primarily motivated by an intent to arrest and seize evidence (see
Dallas, 8 NY3d at 891; Stevens, 57 AD3d at 1516; cf. People v Doll, 21
NY3d 665, 671 n, rearg denied 22 NY3d 1053, cert denied ___ US ___,
134 S Ct 1552). Third, based upon the information that the armed
suspect had fled to the rear of the house, a police witness had
observed a man enter the garage, and the man who exited the garage was
not armed, there was a reasonable basis to associate the emergency
with the garage (see Dallas, 8 NY3d at 891; Stevens, 57 AD3d at 1515-
1516). Thus, under the facts presented here, the police were not
“constitutionally precluded from conducting a protective sweep to
ascertain whether any armed [or injured] persons were inside” (Gibson,
117 AD3d at 1319-1320). The court therefore properly refused to
suppress the gun, which was in plain view (see generally People v
Brown, 96 NY2d 80, 88-89).
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                                                         KA 14-00230

     By failing to seek a ruling on that part of his omnibus motion
seeking to suppress the gun as the fruit of an illegal detention,
defendant abandoned the contention in his pro se supplemental brief
that the gun should be suppressed on that ground (see People v Adams,
90 AD3d 1508, 1509, lv denied 18 NY3d 954). We reject defendant’s
further contention in his pro se supplemental brief that he was denied
his right to appear before the grand jury and thus that the court
erred in denying his motion to dismiss the indictment. The record
establishes that the People complied with their obligation pursuant to
CPL 190.50 (5) (a) to give notice to defendant and his attorney of
their intention to present the matter to the grand jury, and defendant
did not exercise his right to give the District Attorney notice of his
request to testify prior to the filing of the indictment (see id.).

     We have reviewed defendant’s remaining contention in the main and
pro se supplemental briefs and conclude that it is without merit.




Entered:   December 23, 2016                    Frances E. Cafarell
                                                Clerk of the Court
