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
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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