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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 147
The People &c.,
            Respondent,
        v.
John Rossi,
            Appellant.




          Jillian S. Harrington, for appellant.
          Kevin C. King, for respondent.




MEMORANDUM:
          The order of the Appellate Division should be affirmed.
          On July 11, 2009 at approximately 5:10 a.m., police
officers arrived at defendant's residence in response to a 911
call initiated by defendant's wife, who reported that defendant
had shot himself in the hand.   She was unable to tell the

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officers the gun's whereabouts.
             Two officers entered the residence and observed
defendant standing at the end of a hallway, bleeding profusely
from his hand.    The officers drew their weapons and ordered
defendant into the living room where one of the officers frisked
him but found no weapon.    Defendant's two children and a third
child were in the residence.    Although defendant said that he had
been cleaning the gun when it discharged, he stated that he did
not know where the gun was located.      While an EMT was tending to
defendant's wound, the officers searched the residence.     A third
officer began searching the backyard, eventually discovering a
loaded gun near a shed.    Defendant was charged with criminal
possession of a weapon in the second degree (Penal Law § 265.03
[3]).
             At the suppression hearing, defendant argued that the
search of his premises was unconstitutional because by the time
the gun was discovered, the scene was secure and the emergency
had ended.    The People countered that the testimony established
that for the protection of the children who may have come across
the gun, the officers needed to secure it and did so
contemporaneously with escorting the children from the residence.
The suppression court ruled that the warrantless search for and
recovery of the gun were lawful.    After a jury trial, defendant
was convicted as charged and, on appeal, challenged, among other
things, the suppression ruling.


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          A divided Appellate Division affirmed (99 AD3d 947 [2d
Dept 2012]).   The majority determined that "defendant's
incoherence and evasive answers about the location of the gun and
the presence of children on the premises, established an ongoing
emergency and danger to life, justifying the search for and
seizure of the gun" (id. at 950 [citations omitted]).      The court
further concluded that the suppression testimony established that
the officer searching the backyard was aware that other officers
were searching the residence but "was not aware that the children
were secure and out of danger" (id.).   The dissenting Justice
asserted that although the initial entry into the house was
justified in light of the information that defendant had shot
himself and that emergency was extended when the officers learned
that there were children in the house, "once the police frisked
the defendant and knew that the children did not have the gun,
the emergency abated" (id. at 953 [Chambers, J., dissenting]).
The dissenting Justice granted defendant leave to appeal.
          Application of the "emergency doctrine" involves a
mixed question of law and fact that is beyond this Court's review
so long as there is record support for the findings of the courts
below (see People v Doll, 21 NY3d 665, 671 [2013], rearg denied
22 NY3d 1053 [2014] and cert denied __ US __, 134 S Ct 1552
[2014]); People v McBride, 14 NY3d 440, 446 [2010], cert denied
__ US __, 131 S Ct 327 [2010]).   The Appellate Division majority
and dissent both applied the test set forth in People v Mitchell


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(39 NY2d 173, 177-178 [1976], cert denied 426 US 953 [1976]) and
reached conflicting conclusions as to when the emergency ceased.
Because there is record support for the majority's conclusion
that the search was lawful under the emergency exception, "'any
further review is beyond this Court's jurisdiction'" (People v
Dallas, 8 NY3d 890, 891 [2007], quoting People v Molnar, 98 NY2d
328, 335 [2002]).
            Defendant's remaining contentions that his conviction
was not based upon legally sufficient evidence and that
prosecutorial misconduct deprived him of a fair trial are
unpreserved.     His claim of ineffective assistance of counsel is
without merit.
*   *   *    *    *   *   *   *    *      *   *   *   *   *   *    *   *
Order affirmed, in a memorandum. Chief Judge Lippman and Judges
Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam concur.

Decided October 16, 2014




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