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

226
KA 10-02301
PRESENT: CENTRA, J.P., FAHEY, CARNI, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TYQWAN COLES, ALSO KNOWN AS SMOOTH/SMOOVE/KEVIN
HARRIS, DEFENDANT-APPELLANT.


LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (CHRISTOPHER HAMMOND OF
COUNSEL), FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (BRIAN D. DENNIS
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (William F.
Kocher, J.), rendered July 16, 2010. The judgment convicted
defendant, upon a jury verdict, of criminal sale of a controlled
substance in the third degree (two counts), criminal possession of a
controlled substance in the third degree (two counts), unlawful
possession of marihuana and criminally using drug paraphernalia in the
second degree.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Ontario County Court for
further proceedings in accordance with the following Memorandum:
Defendant appeals from a judgment convicting him upon a jury verdict
of, inter alia, two counts each of criminal sale of a controlled
substance in the third degree (Penal Law § 220.39 [1]) and criminal
possession of a controlled substance in the third degree (§ 220.16
[1]). Defendant’s contention that the evidence is legally
insufficient to support the conviction of those counts is preserved
for our review only insofar as he contends that the two main
prosecution witnesses were not credible (see People v Gray, 86 NY2d
10, 19), and that contention is without merit (see People v Moore
[appeal No. 2], 78 AD3d 1658, 1659). The relevant witnesses’
testimony was not “incredible as a matter of law inasmuch as it was
not . . . manifestly untrue, physically impossible, contrary to
experience, or self-contradictory” (People v Harris, 56 AD3d 1267,
1268, lv denied 11 NY3d 925).

     We reject defendant’s contention that County Court erred in
denying his Batson challenge. The prosecutor provided race-neutral
reasons for exercising a peremptory challenge with respect to the
prospective juror, i.e., that the juror had a law degree and he did
not want jurors with law degrees on the panel (see People v Ardrey, 92
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AD3d 967, 969, lv denied 19 NY3d 861), and that she worked as a human
rights specialist, which the prosecutor perceived as a career
indicating a bias in favor of the defense (see People v Tucker, 256
AD2d 1019, 1020). The court properly determined that the proffered
reasons were not pretextual (see People v Johnson, 74 AD3d 1912, 1913;
People v Sampson, 74 AD3d 1866, 1867, lv denied 15 NY3d 923).

     Contrary to defendant’s further contention, the court properly
denied his motion for a mistrial, which was based on allegations of
prosecutorial misconduct during summation. In his opening statement,
defense counsel told the jurors that they would “see a lot of sharks”
during the trial. In his summation, defense counsel said “I promised
you sharks and we got sharks,” and then said that two of the
prosecution witnesses were sharks. In response, the prosecutor said
“[s]harks are predators. Sharks take advantage of smaller, weaker
fish. That is the shark right there, (INDICATING).” Later, he said
“[t]he only shark—well, there’s two I guess you could say, but they’re
sitting on that side of the Courtroom. They didn’t take that witness
stand like [two prosecution witnesses] did and tell you the truth.”
Defense counsel objected and moved for a mistrial. The court issued a
curative instruction that the jury was to disregard the prosecutor’s
“comment that there’s two sharks sitting over there and further
disregard the comment that they didn’t take the witness stand. You
are instructed to disregard that. Obviously the reference was to
[d]efendant and [defense counsel], and obviously [defense counsel]
doesn’t have to testify. He is not a witness in this case.” Although
defendant did in fact testify, we conclude that the court should have
instructed the jury that defendant was not required to do so and that
the People bore the burden of proof (see People v Peterson, 71 AD3d
1419, 1420, lv denied 14 NY3d 891). Nevertheless, we conclude that
the prosecutor’s comments were not so egregious as to deny defendant a
fair trial (see People v Williams, 195 AD2d 986, 987, lv denied 82
NY2d 905).

     Many of the remaining instances of alleged prosecutorial
misconduct have not been preserved for our review (see CPL 470.05
[2]), and in any event most of the instances that defendant contends
constituted misconduct were entirely proper, such as the prosecutor’s
fair comment on the evidence (see People v Green, 60 AD3d 1320, 1322,
lv denied 12 NY3d 915). To the extent that any of the conduct was
improper, we conclude that the “ ‘improprieties were not so pervasive
or egregious as to deprive defendant of a fair trial’ ” (People v
Johnson, 303 AD2d 967, 968, lv denied 100 NY2d 583; see People v
Caldwell, 98 AD3d 1272, 1273, lv denied 20 NY3d 985).

     Defendant failed to preserve for our review his challenges to the
validity of the search warrant (see CPL 470.05 [2]), and we decline to
exercise our power to review those challenges as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]).
Defendant further contends that the court should have suppressed the
evidence seized from his apartment and his statement to the police
because the police entered his home unlawfully prior to the issuance
of the warrant. “It is firmly established that ‘police officers need
either a warrant or probable cause plus exigent circumstances in order
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                                                        KA 10-02301

to make a lawful entry into a home’ ” (People v Kilgore, 21 AD3d 1257,
1257, quoting Kirk v Louisiana, 536 US 635, 638). While we agree with
the court that the police had probable cause to enter defendant’s
apartment, we conclude that the court erred in determining that there
were exigent circumstances.

     Factors to consider in determining whether exigent circumstances
exist are “(1) the nature and degree of urgency involved and the
amount of time needed to obtain a warrant; (2) a reasonable belief
that the contraband is about to be removed; (3) the possibility of
danger to police officers guarding the site of the contraband while a
search warrant is sought[;] and (4) information indicating that the
possessors of the contraband are aware that the police are on their
trail” (People v Lewis, 94 AD2d 44, 49; see also People v Bost, 264
AD2d 425, 426). Here, the People failed to meet their burden of
establishing that exigent circumstances existed to enter defendant’s
apartment without a warrant (see generally People v Knapp, 52 NY2d
689, 694). The People established that, earlier that day, defendant
sold drugs to a police agent inside his residence. In the afternoon,
defendant again sold drugs to the police agent at a location outside
his home. Defendant was arrested after that sale as he was driving
his vehicle back toward his residence. The police went to defendant’s
residence 45 minutes after his arrest and climbed through a window to
make sure that no one was inside the residence who could destroy
evidence before the police could obtain a warrant.

      Based on that evidence, we conclude that there was no urgency to
enter defendant’s residence. Although there was a reasonable belief
that contraband was inside the residence, there was no reasonable
belief that it was about to be removed, that the police would be in
danger as they guarded the residence, or that defendant had
accomplices who would try and destroy any contraband inside the
residence. Indeed, defendant was in custody at the police station at
the time of the search, and there was no testimony that any other
person was likely to be inside the residence (see People v Weathers,
100 AD3d 1521, 1522; People v Harper, 100 AD3d 772, 774). Moreover,
this case does not involve a situation where the police agent told the
officers that other persons were present when she purchased the drugs
from defendant (cf. People v Bryant, 91 AD3d 558, 558, lv denied 20
NY3d 1009; People v Lasso-Reina, 305 AD2d 121, 122, lv denied 100 NY2d
595).

     While we conclude that the People did not establish that exigent
circumstances existed, they raised the independent source theory at
the suppression hearing (cf. Weathers, 100 AD3d at 1522). In light of
its determination that exigent circumstances existed, the court did
not rule on whether defendant established that the seizure of the
evidence and his statement to the police were causally related to the
unlawful entry into his residence (see generally People v Arnau, 58
NY2d 27, 32, cert denied 468 US 1217). We have no power to “ ‘review
issues either decided in an appellant’s favor, or not ruled upon, by
the trial court’ ” (People v Concepcion, 17 NY3d 192, 195), and we
thus cannot address the independent source theory (see People v
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                                                         KA 10-02301

Ingram, 18 NY3d 948, 949). We therefore hold the case, reserve
decision and remit the matter to County Court to determine whether the
evidence and statement should be suppressed as the fruit of the
illegal entry (see People v Adams, 96 AD3d 1588, 1589; see generally
People v Muhammad, 17 NY3d 532, 547).




Entered:   April 26, 2013                      Frances E. Cafarell
                                               Clerk of the Court
