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

199
KA 13-00159
PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, CURRAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TIMOTHY D. SAMUEL, DEFENDANT-APPELLANT.


DIANNE C. RUSSELL, ROCHESTER, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Thomas E. Moran, J.), rendered July 2, 2012. The judgment convicted
defendant, upon a jury verdict, of robbery in the first degree (two
counts), robbery in the second degree (two counts), kidnapping in the
second degree, assault in the second degree (two counts) and criminal
possession of a weapon in the second degree (two counts).

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Supreme Court, Monroe County,
for a suppression hearing.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, kidnapping in the second degree
(Penal Law § 135.20) and two counts of robbery in the first degree
(§ 160.15 [2], [4]), arising from an incident occurring in a two-unit
apartment building in the City of Rochester. In response to a 911
call, Rochester police officers responded to the building and found a
man bound at the wrists and bleeding from several wounds. The man
reported that he had been attacked by several people, some of whom
were still in the building. The officers surrounded the building and
apprehended defendant and others as they left the building. The
officers then performed what they described as a security sweep of the
building, during which they noted, inter alia, the presence of masks,
guns, and other apparent items of evidence. The officers then
withdrew and obtained a search warrant for the building, which
resulted in the seizure of numerous objects that were introduced in
evidence at defendant’s trial.

     Defendant submitted omnibus motions seeking, among other relief,
suppression of the evidence seized pursuant to the search warrant. He
also made several requests for the warrant application, all of which
were denied by the prosecution, and he made several motions or
requests for an order directing the prosecution to turn over that
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                                                         KA 13-00159

application, which were denied by County Court (Piampiano, J.). After
an in camera review of the search warrant application, County Court
also denied, without a hearing, defendant’s motion to suppress the
evidence seized pursuant to the search warrant. During the trial
before Supreme Court (Moran, J.), when the prosecution sought to
introduce evidence seized during the execution of the search warrant,
defendant orally moved to suppress the items seized pursuant to the
warrant, contending for the first time that the warrant was improperly
issued because it was based on evidence that was obtained during the
earlier warrantless search, which defendant contended was conducted in
violation of Payton v New York (445 US 573) and its progeny. Based on
the trial testimony regarding the conduct of the prewarrant security
sweep, Supreme Court concluded, sua sponte, that exigent circumstances
justified the warrantless search and denied the motion without a
hearing.

     Defendant contends on appeal that, inter alia, County Court and
Supreme Court erred in refusing to suppress the evidence seized during
the execution of the warrant because it was the fruit of the prior
unconstitutional search of his home. We conclude that Supreme Court
erred in denying, without a hearing, defendant’s midtrial suppression
motion.

     Initially, defendant contends that County Court erred in refusing
to suppress the fruits of the search warrant without conducting a
hearing. In his motion papers, defendant contended only that the
warrant was not based on probable cause, without reference to any
prior activity. It is well settled that a “challenge to the facial
sufficiency of a written warrant application presents an issue of law
that does not require a hearing, and the court properly determines the
merits of such a challenge ‘by reviewing the affidavits alone in order
to determine whether they establish probable cause’ ” for the search
(People v Carlton, 26 AD3d 738, 738, quoting People v Dunn, 155 AD2d
75, 80, affd 77 NY2d 19, cert denied 501 US 1219). Defendant failed
to preserve for our review his present contention that County Court
erred in upholding the warrant because it was based on evidence
obtained during a prior unconstitutional search, “inasmuch as
defendant failed to raise it either in his motion papers or before the
suppression court” (People v Fuentes, 52 AD3d 1297, 1298, lv denied 11
NY3d 736; see People v Facen, 117 AD3d 1463, 1463-1464, lv denied 23
NY3d 1020). In any event, we conclude that the allegations in
defendant’s moving papers did not contain sufficient allegations of
fact to warrant a hearing on that contention (see People v Ferron, 248
AD2d 962, 963, lv denied 92 NY2d 879; see generally People v Jones, 95
NY2d 721, 725).

     Defendant further contends that County Court erred in concluding
that the officers were aware of the apartment building’s design before
the security sweep. Defendant failed to preserve that contention for
our review, inasmuch as he did not challenge the warrant in County
Court on that ground (see People v Williams, 127 AD3d 612, 612; People
v Demus, 82 AD3d 1667, 1667-1668, lv denied 17 NY3d 815).
Furthermore, defendant did not join in a challenge to the search
warrant made by a codefendant’s attorney on that ground, and it is
                                 -3-                           199
                                                         KA 13-00159

well settled that a “[d]efendant cannot rely on the request of a
codefendant to preserve the claimed . . . error” (People v Buckley, 75
NY2d 843, 846; see People v Cabassa, 79 NY2d 722, 730, cert denied sub
nom. Lind v New York, 506 US 1011). 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]).

     We agree with defendant, however, that Supreme Court erred in
denying without a hearing his midtrial motion to suppress the fruits
of the search warrant. Defendant’s motion was made shortly after the
prosecution belatedly provided the search warrant application, which
demonstrated that the police officers had searched the building before
they obtained the search warrant and used the information gained in
the initial search in their application for the warrant. It is well
settled that police officers may not conduct an unconstitutional
warrantless search and then use the fruits of that search to obtain a
warrant (see e.g. People v Perez, 266 AD2d 242, 243, lv dismissed 94
NY2d 923; see also People v Bartholomew, 132 AD3d 1279, 1281). To the
contrary, such a procedure “undermines the very purpose of the warrant
requirement and cannot be tolerated” (People v Burr, 70 NY2d 354, 362,
cert denied 485 US 989; see People v Marinez, 121 AD3d 423, 424).

     Here, Supreme Court, based on its view of the trial testimony,
concluded sua sponte that exigent circumstances justified the
protective security sweep of the building, and thus summarily
determined that the information gained by the officers during that
search could properly be considered by the issuing magistrate in
determining whether there was probable cause to issue the search
warrant. That was error. As previously noted herein, defendant’s
oral motion to suppress challenged the warrant on the ground that it
was based on information that was obtained in violation of his
constitutional rights under Payton v New York (445 US 573). In
determining whether a hearing is required pursuant to CPL 710.60, “the
sufficiency of defendant’s factual allegations should be evaluated by
(1) the face of the pleadings, (2) assessed in conjunction with the
context of the motion, and (3) defendant’s access to information”
(People v Mendoza, 82 NY2d 415, 426). We note that the motion was not
required to be made in writing, as would be required for a pretrial
motion to suppress (see CPL 710.60 [1]) and, because it was properly
“made orally in open court” during trial, the court was required,
“where necessary, [to] conduct a hearing as provided in [CPL 710.60
(4)], out of the presence of the jury if any, and make findings of
fact essential to the determination of the motion” (CPL 710.60 [5]).

     We conclude that a hearing was necessary herein. Defendant’s
allegation that the search was of his home was sufficient “to
demonstrate a personal legitimate expectation of privacy in the
searched premises” (People v Wesley, 73 NY2d 351, 357; cf. People v
Scully, 14 NY3d 861, 864). The People failed to preserve for our
review their current contention that, as Supreme Court sua sponte
determined, the security sweep was justified by the emergency
doctrine, in order to ensure that there were no more victims or
perpetrators in the building (see generally People v Sylvester, 129
AD3d 1666, 1666-1667, lv denied 26 NY3d 1092; People v Whitley, 68
                                 -4-                           199
                                                         KA 13-00159

AD3d 790, 791, lv denied 14 NY3d 807). We note, however, that Supreme
Court made its sua sponte determination before the People had an
opportunity to make any argument on the merits, and that the People
had raised this contention in response to an earlier motion by a
codefendant. In any event, the People’s current contention merely
“ ‘raise[s] a factual dispute on a material point which must be
resolved before the court can decide the legal issue’ of whether
evidence was obtained in a constitutionally permissible manner”
(People v Burton, 6 NY3d 584, 587; cf. Scully, 14 NY3d at 864). Thus,
before ruling on the motion, “it was incumbent upon [Supreme C]ourt to
conduct a hearing to determine whether there were sufficient exigent
circumstances [or other factors such as an ongoing emergency situation
that would] justify the . . . warrantless entry” into the building
(People v Chamlee, 120 AD3d 417, 419). Therefore, we hold the case,
reserve decision, and remit the matter to Supreme Court for a hearing
on defendant’s midtrial suppression motion.




Entered:   March 25, 2016                      Frances E. Cafarell
                                               Clerk of the Court
