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

997
KA 12-02050
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

HARRY E. HARRIS, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (CANDICE SENGILLO OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered October 3, 2012. The judgment convicted
defendant, upon his plea of guilty, of attempted assault in the second
degree.

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

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of attempted assault in the second degree (Penal Law §§
110.00, 120.05 [2]), defendant contends that County Court erred in
refusing to suppress certain physical evidence because he was
subjected to an unlawful seizure and his consent to the search of his
house was coerced. We reject those contentions.

     Contrary to defendant’s initial contention, the court properly
determined that the police officers who removed defendant from his
yard did not violate defendant’s constitutional rights. The testimony
at the suppression hearing established that police officers had
responded to the area for reports of gunshots, and a woman informed
the police that she had been struck by shotgun fire that came from the
area of defendant’s house. A police officer testified that, upon
observing defendant in that area, he immediately directed defendant to
move to a safe location and patted him down for weapons. It is well
settled “that police officers serve many different functions within
society and that the rules governing encounters with civilians will to
a large extent depend upon the police officer’s purpose in initiating
the encounter” (People v Hollman, 79 NY2d 181, 189). “Police are
required to serve the community in innumerable ways, from pursuing
criminals to rescuing treed cats. While the Fourth Amendment’s
warrant requirement is the cornerstone of our protections against
unreasonable searches and seizures, it is not a barrier to a police
                                 -2-                           997
                                                         KA 12-02050

officer seeking to help someone in immediate danger . . . Indeed,
‘[p]eople could well die in emergencies if police tried to act with
the calm deliberation associated with the judicial process’ . . .
Accordingly, ‘what would be otherwise illegal absent an . . .
emergency’ becomes justified by the ‘need to protect or preserve life
or avoid serious injury’ ” (People v Molnar, 98 NY2d 328, 331-332; see
generally People v Doll, 21 NY3d 665, 670-671, rearg denied 22 NY3d
1053, cert denied ___ US ___, 134 S Ct 1552). Here, we conclude that
the evidence establishes that the officer acted to ensure defendant’s
safety and the safety of those in the area in detaining him briefly
and removing him from the area in which the shots were fired (see
generally People v Edwards, 52 AD3d 1266, 1267, lv denied 11 NY3d
736).

     We also reject defendant’s contention that he was seized in
violation of his constitutional rights. The record supports the
court’s conclusion that defendant was not handcuffed and placed in a
police vehicle until after the officers learned that there were
shotguns in the basement of his house, one of defendant’s daughters
informed the officers that defendant had pointed a shotgun at her head
earlier in the evening, and the officers were aware that the victim
had been hit by a shotgun blast from that area. At that time, they
had reasonable suspicion to detain defendant (see generally People v
De Bour, 40 NY2d 210, 223).

     Finally, we reject defendant’s further contention that his
consent to the search of his house was coerced because, inter alia, he
was handcuffed when he agreed to permit that search. It is well
settled that “[v]oluntariness is incompatible with official coercion,
actual or implicit, overt or subtle,” and that “ ‘[w]here there is
coercion there cannot be consent’ ” (People v Gonzalez, 39 NY2d 122,
128, quoting Bumper v North Carolina, 391 US 543, 550). Additionally,
“the fact that a defendant was handcuffed has been considered a
significant factor in determining whether his apparent consent was but
a capitulation to authority” (id. at 129). Here, however, the court
concluded that defendant was not handcuffed when he consented to the
search, and it is well established that “the suppression court’s
credibility determinations and choice between conflicting inferences
to be drawn from the proof are granted deference and will not be
disturbed unless unsupported by the record” (People v Esquerdo, 71
AD3d 1424, 1424, lv denied 14 NY3d 887 [internal quotation marks
omitted]; see People v May, 100 AD3d 1411, 1412, lv denied 20 NY3d
1063). There is support in the record for the court’s conclusion, and
we decline to disturb it.




Entered:   October 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
