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State of New York

Court of Appeals

OPINION

This opinion is uncorrected and subject to revision 

before publication in the New York Reports.

No. 84 

The People &c.,

 Respondent,

 v.

Tramel Cuencas,

 Appellant.

Yvonne Shivers, for appellant.

Sholom J. Twersky, for respondent.

The Legal Aid Society, amicus curiae.

WILSON, Chief Judge: 

Well before daybreak, four armed officers knocked repeatedly on the exterior door 

and window of a two-family residence. Someone responded by coming to the exterior door 

and opening it. The officers identified themselves as police, the person moved aside, and 

the officers entered the vestibule. Through the doorway of the downstairs apartment, they 

saw the person they wished to arrest, entered that apartment, and arrested him. The 
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question before us is whether the suppression court should have granted Mr. Cuencas’s 

motion to suppress for lack of consent for police to enter the apartment. We hold that it 

was error to deny the motion and now reverse. 

I.

 Testimony adduced at the suppression hearing and trial established the following. 

On November 14, 2012, codefendants Tramel Cuencas and Irving Gavin abducted Thomas 

Dudley at gunpoint from his Brooklyn apartment, in the presence of Mr. Dudley’s sisters, 

Monique and Brianna, and his cousin, Travis. They bound Mr. Dudley’s hands with zip 

ties. He was found dead in a Queens park the next morning, with his throat and wrists cut. 

Some zip ties were next to his body. 

On November 17, Monique and Travis reported Mr. Dudley’s abduction to Queens 

detectives, showing a detective photos of the two abductors, stored on Monique’s phone. 

A detective emailed the photos to detectives in the Brooklyn precinct; officers there 

recognized the men as Mr. Cuencas and Mr. Gavin. From a photo array, Monique and 

Travis subsequently identified them as the perpetrators. Detectives then issued “perp 

positive” I-cards1 for the two men. 

 1 “I-card” refers to “Investigation Card,” a computerized notification used by the New York 

Police Department to alert patrol officers that an individual is wanted by the police. The 

I-card indicates the wanted individual as belonging to one of three categories: (1) 

“Perpetrator – Probable Cause to Arrest”; (2) “Suspect Only – No Probable Cause to 

Arrest”; (3) “Witness” (New York City Police Department Patrol Guide Procedure No. 

208-23). Officers are instructed to detain, but not necessarily arrest, individuals named on 

I-cards who are designated “Perpetrator – Probable Cause to Arrest” (id.).
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However, the police did not apply for a warrant to arrest Mr. Cuencas or Mr. Gavin. 

Instead, at 5:30 AM on November 19, a “warrant team” arrived at the residence where the 

police believed they could be found, a two-story, two-family house. The team was 

composed of four armed detectives, led by Detective Fogelman. 

The detectives approached the front door of the building and knocked several times 

without response. An officer then knocked on a first-floor window. A man whom officers 

did not recognize looked out of the window and then, after some time, the same man, 

Kwamel Jeter, came to the front exterior door and opened it.2 Detective Fogelman testified 

that when Mr. Jeter opened the door, he asked, “How ya doing, sir? Mind if we come in 

and talk to you?” In response, Mr. Jeter opened the door wider, which Detective Fogelman 

took to mean that Mr. Jeter was consenting to the detectives coming in. None of the 

detectives asked Mr. Jeter who he was, what his name was, whether he lived in the building 

or what he was doing there. Mr. Jeter never made any verbal response to Detective 

Fogelman’s request to enter to speak with him. 

The front door of the house opened to a small vestibule with two interior doors, each 

visibly bearing a lock—one leading into a first-floor apartment and the other leading to a 

set of stairs leading up to a separate apartment. Both doors were open. Although officers 

 2 From this point on, the testimony of Mr. Jeter and Detective Fogelman diverge sharply 

as to the conduct of the police. The suppression court credited Detective Fogelman’s 

testimony and the Appellate Division did not disturb that finding. We are therefore bound 

by it.
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did not know whether Mr. Cuencas and Mr. Gavin lived on the first or second floor, 

Detective Fogelman saw Mr. Cuencas through the open door between the vestibule and the 

first-floor apartment. The detectives left the vestibule, entered into the first-floor apartment 

and then arrested Mr. Cuencas in the living room and Mr. Gavin in a bedroom, which was 

towards the rear of the apartment. 

Officers transported Mr. Cuencas and Mr. Gavin to a Queens precinct and placed 

them in separate interrogation rooms. At some point, another officer recovered Cuencas’s 

cell phone from him. At approximately 11:15 AM, a detective entered the room and gave 

Mr. Cuencas his Miranda warnings. Mr. Cuencas said that he waived his rights would 

speak to the detective. 

After several hours of questioning, Mr. Cuencas confessed that he and Mr. Gavin 

had abducted Mr. Dudley. He said that he needed money and that Mr. Cruz, a drug dealer, 

offered to pay him for abducting Mr. Dudley, who was also a drug dealer. Mr. Cruz told 

Mr. Cuencas that he wanted to abduct Mr. Dudley so that Mr. Dudley’s partner, Ali, would 

release Mr. Cruz’s boss, Rob, whom Ali had abducted previously. Mr. Cruz assured Mr. 

Dudley and Mr. Gavin that their only role would be abducting Mr. Dudley, and that Mr. 

Dudley would not be hurt. Mr. Cuencas further told the police that he and Mr. Gavin led 

Mr. Dudley from his apartment to a waiting van. They remained with Mr. Dudley in the 

back as the van drove away but exited it a few minutes later. At the time they left, Mr. 

Dudley was alive. 

The next day, while executing a search warrant on the apartment, police found the 

title for a Jaguar in the name of Victor Cruz in a safe located in one of the apartment’s 
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bedrooms. On a windowsill, police also found the keys to the car itself, which was parked 

across the street from the apartment.

Mr. Cuencas and Mr. Gavin were indicted on several charges including kidnapping, 

robbery, and felony murder. The People theorized that Mr. Cruz had given Mr. Gavin the 

Jaguar as compensation for participation in the abduction—the extravagance of the gift 

was evidence that Mr. Gavin and Mr. Cuencas knew that Mr. Dudley would be killed.

Contending that the warrantless, nonconsensual entry into his home was unlawful, 

Mr. Cuencas moved to suppress the Jaguar title in Cruz’s name and the cell phone, which 

contained pictures of Mr. Cuencas posing with the Jaguar. Following a Payton hearing, 

although the suppression court rejected the People’s argument that Mr. Cuencas did not 

have a reasonable expectation of privacy in the first-floor apartment, which it determined 

was Mr. Gavin’s residence,3 the it nonetheless denied Mr. Cuencas’s motion. The court 

based its decision on Detective Fogelman’s testimony as to the circumstances under which 

the detectives gained permission to enter the vestibule and also on Mr. Jeter’s testimony 

that his mother owned the entire building, that he had a key to the first-floor apartment, 

and that he could come and go as he pleased – information unknown to the detectives at 

the time the arrested Mr. Cuencas. 

 3 The Appellate Division noted that it was bound by the suppression court’s finding that 

Mr. Cuencas had an expectation of privacy in Mr. Gavin’s residence (192 AD3d 109 at 

112, citing People v LaFontaine, 92 NY2d 470 [1998]), and the People do not press that 

argument on appeal. For readability reasons, we refer to the apartment as Mr. Cuencas’s.
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After a jury trial, Mr. Cuencas was convicted of two counts of Murder in the Second 

Degree (Penal Law. § 125.25 [3]) and one count of Robbery in the Second Degree (Penal 

Law § 160.10 [2] [b]). Mr. Cuencas was sentenced as a second felony offender to two 

concurrent prison terms of 25 years-to-life for the murder convictions and 15 years, with 

five years of post-release supervision, for the robbery conviction. The Appellate Division 

affirmed his conviction and upheld the denial of his suppression motion. The court 

determined that the detectives had gone to Mr. Cuencas’s home for the specific purpose of 

arresting him and that Mr. Cuencas specifically raised the question of whether a warrantless 

home arrest conducted to delay the attachment of counsel violated the New York 

Constitution, but “decline[d] to find” that the intent of the police to conduct a warrantless 

arrest of Mr. Cuencas in his home created a “new category of Payton violations” because 

it saw “no viable path to resolving [the] question in the [Mr. Cuencas’s] favor within the 

current framework of New York law” (192 AD3d 109, 113 [2d Dept 2020]). A Justice of 

the Appellate Division granted leave to appeal (37 NY3d 962). 

We now reverse. The warrantless entry into Mr. Cuencas’s home was not based on 

consent under the New York and United States Constitutions.

II.

Mr. Cuencas challenges the suppression court’s determination that Mr. Jeter had 

apparent authority to consent to the police entry of the downstairs apartment based on 

Detective Fogelman’s testimony that there may have been two apartments inside the 

building and he did not know who Mr. Jeter was, and because Mr. Jeter only consented to 

police entry into the vestibule, not the apartment. The prosecution responds that Mr. Jeter 
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had apparent authority because he looked out the window of the first-floor apartment and 

opened the door to the building early in the morning, and because his testimony before the 

suppression court established that he had actual authority over the apartment. 

Under Article 1, Section 12 of the New York Constitution and the Fourth 

Amendment of the United States Constitution that searches and seizures inside a home 

without a warrant are presumptively unreasonable (People v Knapp, 52 NY2d 689, 694 

[1981]; Payton v New York, 445 US 573, 590 [1980] [explaining that with respect to the 

home, the Fourth Amendment draws a “firm line at the entrance to the house”]). Absent 

one of two narrow circumstances, exigent circumstances or voluntary consent, the police 

many not enter a private dwelling to arrest its occupant without an arrest warrant (People 

v Levan, 62 NY2d 139, 144 [1984]; Payton, 445 US at 587-588). Whether an individual 

voluntarily consented to a home’s search is a question of fact, but the minimum factual 

showing necessary to constitute consent is a question of law (People v McRay, 51 NY2d 

594, 601 [1980]).4 Here, the testimony before the suppression court does not establish that 

the police had consent to enter Mr. Cuencas’s home. 

As a threshold matter, we clarify that the suppression court erred when it relied on 

facts not known to the police at the time they entered, such as Mr. Jeter’s statement that he 

 4 Our dissenting colleagues characterize the central issue in this case as a factual dispute, 

but acknowledge that whether the evidence here as to the reasonableness of the officers’ 

belief that Mr. Jeter had the authority to consent to entry into the first-floor apartment and 

had given his consent to do so raises an issue as to the minimum showing necessary to 

establish third-party consent, which is a question of law (cf. People v McRay, 51 NY2d 

594, 601 [1980]).
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had keys to the apartment, that his mother owned the building, and that he was free to come 

and go into the downstairs apartment. Those facts are irrelevant to the issue of apparent 

authority, which turns solely on what the detectives knew or should have known at the time 

they entered (see People v Adams, 53 NY2d 1, 9 [1981] [whether an officer reasonably 

believed that an individual has apparent authority to consent to a warrantless home search 

is “based upon an objective view of the circumstances present” at the time of the search]). 

After all, guests sometimes answer a knock at their host’s doors. 

The United States Supreme Court first outlined third-party consent as an exception 

to the warrant requirement in Coolidge v New Hampshire (403 US 443 [1971]), 

Schneckcloth v Bustamonte (412 US 218 [1973]), and United States v Matlock (415 US 

164 [194]). Together, those cases stand for the proposition that when “the prosecution 

seeks to justify a warrantless search by proof of voluntary consent,” it “may show that 

permission to search was obtained from a third party who possessed common authority 

over or other sufficient relationship to the premises or effects sought to be inspected” 

(Matlock, 415 US at 170-171). Common authority cannot be implied by the mere interest 

the third party has in the property (Chapman v United States, 365 US 610 [1961] [landlord 

could not validly consent to the search of a house he had rented to another]; Stoner v 

California, 376 US 483 [1964] [night hotel clerk could not validly consent to search of 

customer’s room]). 

In Adams, we held that under the Fourth Amendment of the United States 

Constitution, if “the searching officers rely in good faith on the apparent capability of an 

individual to consent to a search and the circumstances reasonably indicate that that 
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individual does, in fact, have the authority to consent, evidence obtained as the result of 

such a search should not be suppressed” (53 NY2d at 9-10). The standard set out in Adams

is an objective one – whether a reasonable person could conclude that consent was given 

by someone with authority to do so. Subsequent United States Supreme Court law has 

analyzed the Fourth Amendment similarly (see Illinois v Rodriguez, 497 US 117, 188-189 

[1990]). 

Here, the circumstances do not reasonably indicate that Mr. Jeter had apparent 

authority to consent to the detectives’ entry into Mr. Cuencas’s apartment. The People 

contend that because the detectives knocked on the exterior door and window for several 

minutes, then saw a man peering out of the window near the front exterior door and the 

first-floor apartment door was open, it was reasonable, in view of the early hour, to 

conclude that the man opening the door had come from the first-floor apartment and no 

further inquiry was necessary. 

The fundamental problem with the People’s argument is that the officers never 

sought consent to enter Mr. Cuencas’s apartment – only to enter the common vestibule to 

speak the person who answered the exterior door. The record shows that there were 

separate doors inside the vestibule, one for each of the two apartments in the building, each 

bearing a lock, and that each door was open. When the People asked Detective Fogelman 

to describe how he perceived the building upon his arrival at 5:30 AM, he testified that “It 

may have had two apartments, an upstairs and a downstairs.” Detective Fogelman asked 

for consent to enter through the exterior door into the vestibule, not into either of the two 
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apartments, and it is not disputed that Mr. Cuencas’s apartment had a door separating it 

from the vestibule.

Even if the detective’s question could be interpreted as a request to search both, or 

either, of the apartments, the circumstances would not support a view that Mr. Jeter 

appeared to have the authority to consent. The People’s reliance on Adams and Rodriguez

is misplaced, as those cases show that a reasonable belief of apparent authority requires 

some claim of authority by the person granting consent. In both cases, the third party 

verbally communicated information to law enforcement that would lead a reasonable 

person to believe the third party had authority. In Adams, the person giving consent told 

the police about the weapons in the apartment, escorted the police to the apartment, and 

“gave them access by opening the door with a key she was carrying” (53 NY2d at 6). 

Likewise, in Rodriguez, the person granting consent “several times referred to the 

apartment as ‘our’ apartment” and “unlock[ed] the door with her key so that the officers 

could enter and arrest [the defendant]” (497 US at 179-80). 

People v John (27 NY3d 294 [2016]), is also inapposite. There, a resident of a 

multi-family brownstone directed officers to the common basement of the building where 

she had seen the defendant enter with a gun – a basement that “did not have any areas 

designated for particular tenants” (id. at 297-98). John cited our decision in People v. 

Leach (21 NY3d 969 [2013]), a case in which we held that the defendant had no reasonable 

expectation of privacy in a bedroom that was not his, but was used by his grandmother to 

house visitors (cf. People v Wood, 31 NY2d 975, 976 [1973] [homeowner could lawfully 

consent to search of a boarder’s bedroom in her house only because that room was not set 
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aside for the boarder’s exclusive possession and use when the boarder shared it with the 

homeowner’s 10-year-old son, over whom she had dominion]). 

Here, the suppression court found that Mr. Cuencas had an expectation of privacy 

in the apartment. Thus, the very caselaw relied on the by the People shows that the 

minimum threshold for apparent authority under the New York and United States 

Constitutions requires some communication or conduct by the person giving consent to 

support a claim of authority. It would be a radical departure to say that so long as an 

unidentified person within a multi-family apartment building opens the building’s exterior 

door at the request of the police, that person will be deemed to have had apparent authority 

to authorize a police search of the entire premises.5 Here, all Detective Fogelman knew 

 5 The Appellate Division cases relied on by the dissent demonstrate two things. First, there 

is no contrary decision from our Court. 

Second, those cases cited by the dissent involving questions of third-party consent are fully 

consistent with our holding because every one of them involved instances in which police 

sought entry into a specified apartment unit within which they believed or knew the 

defendant to reside (see People v Brown, 234 AD2d 211, 213 [1st Dept 1996] affd 91 NY2d 

854 [1997] [third-party consent by gesture when police knocked on the door to an 

apartment unit which had been explicitly identified by the victim as his assailant’s 

residence]; People v Washington, 209 AD2d 817, 818 [3d Dept 1994] [third-party consent 

to enter an apartment unit when police, “long-time friends of the defendant’s mother [who 

were] aware that the defendant resided with her,” knocked on apartment unit door 

requesting to enter and the defendant’s mother opened the door and stepped aside, giving 

no indication that they did not have permission to stay]); or when police knocked at a door 

leading directly into a residence, where it would be more reasonable (though not 

necessarily reasonable) to assume that someone inside the residence had authority to grant 

permission to search inside (see People v Vazquez, 206 AD3d 1621, 1623 [4th Dept 2022] 

[third-party consent when a person inside the defendant’s single-family residence opened 

the door, stood aside and “gestured to [to police] to indicate that the defendant was inside” 

the home]).
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was that Mr. Jeter answered the repeated knocking by the police at 5:30 AM by looking 

through a window and then opening the front door; Mr. Jeter was neither of the suspects; 

Mr. Jeter was not someone known to the detectives; and that the vestibule had two doors 

within it, one of which was at the base of a staircase and both of which bore exterior-type 

locks. The fact Mr. Jeter answered the door at 5:30 AM and the first-floor apartment door 

was open, when Det. Fogelman could see there was a second door, cannot form the basis 

of a reasonable belief that Mr. Jeter appeared to have authority to authorize the police to 

enter the apartment. Even if the detectives knew that Mr. Jeter had been in the first-floor 

 

Finally, none of the other cases cited by the dissent involved third-party consent (see

People v Putnam, 50 AD3d 1514, 1514 [4th Dept 2008] [“The evidence at the suppression 

hearing establish[ed] that defendant left the door open and did not object to the officer’s 

presence in his home”] [emphasis added] [internal citations omitted]; People v Gonzalez

(222 AD2d 453 [2d Dept 1995] [defendant consented by conduct to entry into her home]; 

People v Taylor, 111 AD2d 520, 520-521 [3d Dept 1985] [defendant consented to entry 

when officers, acting on identifying information from a police informant and a motel frontdesk clerk, knocked on the defendant’s motel room door, defendant answered, stepped back 

from the door, and then officers walked in], lv denied 66 NY2d 618 [1985] [emphasis 

added]; United States v Grant (371 Fed Appx 228 [2d Cir 2010]) [defendant whose identity 

and address were known to police, consented by conduct to entry into his apartment unit 

when he admitted police into the apartment building vestibule and did not object to officers 

following him into his apartment]); United States v Sabo, 724 F3d 891, 893-894 [7th Cir 

2013] [defendant whose identity and address were known to police implicitly consented to 

an officer’s entry into his trailer home when he answered the officer’s knock at the trailer 

door, then stepped back and aside, letting the door open, in direct response to the officer’s 

request to enter]). 

None of those cases involves a situation in which a third-party unknown to the police was 

deemed to have granted consent to enter an interior apartment unit merely by opening an 

exterior door to the common area of a multi-apartment building and standing aside as the 

police entered. Unlike here, none of these cases involve an inference of consent to enter 

an apartment unit from an unknown third-party’s consent to enter an apartment building 

common area. 
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apartment shortly before answering the door, something more would be required to 

establish a reasonable belief of apparent authority, such as Mr. Jeter identifying himself the 

building’s landlord, displaying keys to the first-floor apartment, or unlocking and entering 

the apartment. 

In contrast to the circumstances in which third parties have been determined to have 

sufficient apparent authority to consent to the search of a home, the People admit that Mr. 

Jeter did not say a single word to the detectives and the detectives did not ask any question 

of Mr. Jeter other than whether they could enter the vestibule to speak with him. The belief 

that Mr. Jeter came from the first-floor apartment of a multi-family building to answer the 

door is insufficient to establish his apparent authority absent some affirmative statement 

claiming authority or concrete demonstration of authority (see, e.g. People v Petrie, 453 

NYS2d 725, 727 [2d Dept 1982] [“Nor may the police proceed without making some 

inquiry into the actual state of authority when they are faced with a situation which would 

cause a reasonable person to question the consenting party’s power or control over the 

premises or property to be inspected”]; People v Ponto, 103 AD2d 573 [2d Dept 1984] 

[resident of a home lacked apparent authority to consent to search of the bedroom he did 

not occupy]). 

Based on the facts known to them at the time and the reasonable inferences to be 

drawn therefrom, the detectives’ belief that Mr. Jeter had apparent authority was not 

reasonable. The warrantless entry into the first-floor apartment therefore violated Mr. 

Cuencas’s rights under the New York and Federal Constitutions. 

III.
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Finally, we agree with Mr. Cuencas’s contention that the case must be remitted to 

Supreme Court to determine whether any evidence obtained as a result of the illegal search 

is sufficiently attenuated from the illegal arrest.6 Mr. Cuencas’s remaining contentions do 

not compel a different result on this appeal. Accordingly, the order of the Appellate 

Division should be reversed, and case remitted to Supreme Court for further proceedings 

in accordance with this opinion.

 6 The People represent to this Court that they do not contend that the recovery of Mr. 

Cuencas’s cell phone was attenuated from the illegal arrest.
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CANNATARO, J. (dissenting):

It is well settled that “[t]he determination as to whether police received voluntary 

consent to enter [a dwelling is] a mixed question of law and fact” (People v Xochimitl, 32 

NY3d 1026, 1027 [2018]). Such mixed questions are “beyond our review if there is record 

support for the . . . conclusion” of the courts below (People v Parker, 32 NY3d 49, 55 

[2018]). The majority correctly acknowledges that whether an individual voluntarily 
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consented to a police search generally presents a mixed question of law and fact (see People 

v Valerio, 95 NY2d 924, 925 [2000]) but concludes that “the undisputed facts do not meet 

the threshold requirement for” a determination that consent to search was present as a 

matter of law (People v McRay, 51 NY2d 594, 601 [1980]). I disagree. Because 

reasonable minds could draw different inferences from the established facts and “it simply 

cannot be said that no record support exists for” the suppression court’s determination 

(People v Howard, 22 NY3d 388, 403 [2013] [emphasis added]), this Court is precluded 

from disturbing it. Therefore, I respectfully dissent.

At the suppression hearing, the arresting officer testified that, after receiving no 

response to their early-morning knocks on the front door of the two-family apartment 

building where defendant Tramel Cuencas lived, police knocked on the front window of 

the building’s ground floor apartment. They saw an individual, later determined to be 

Kwamel Jeter, peer out at them through the apartment window. A few moments later, Jeter 

opened the front door. When the police asked if they could come in to talk to him, Jeter 

“stepped aside” and opened the door wider, revealing a small vestibule with two doors, one 

leading to a staircase and one leading into the apartment from which police had just seen 

Jeter through the window. As the police entered the vestibule and proceeded towards the 

open apartment door, Jeter did not give any indication that they were not permitted to 

continue into the apartment or that he wanted them to remain in the vestibule. The officers 
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interpreted Jeter’s actions as consent to enter not only the vestibule but also the apartment, 

where they found defendant sitting on a couch and arrested him.1

Although the scope of Jeter’s consent is certainly open to dispute, there is evidence 

in the record supporting the inference that his actions conveyed tacit consent for the four 

police officers to enter the open apartment that he had just come from and was not limited 

to the small vestibule. Because either view is supportable on this record, this Court has no 

power to disturb the lower court’s finding (see Parker, 32 NY3d at 55). But rather than 

assessing whether there was any support in the record for the hearing court’s determination, 

the majority substitutes its own view of the evidence and, in doing so, ignores the wellsettled standard for mixed questions.

The majority begins by discussing the finding of the courts below that Jeter had 

ostensible control over the apartment in which police discovered defendant. It notes that 

certain pieces of evidence relied on by the hearing court, such as Jeter’s possession of keys 

to the apartment, or the fact that his mother owned the entire building, were not known to 

the police at the time of the arrest and thus cannot be relevant to determining whether valid 

consent was given. But this evidence, which was not mentioned at all in the Appellate 

Division’s affirmance, is not the only evidence supporting the lower court’s determination. 

Rather, as explained above, the testimony from the arresting officer as to his interactions 

with Jeter immediately prior to entering the apartment supports a finding that Jeter tacitly 

 1 Although the majority refers to locks on both doors, the record contains no indication that 

Detective Fogelman was aware of any lock on the open ground-floor apartment door. 
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consented to their entry. Thus, the fact that the hearing court may have improperly relied 

on certain pieces of evidence is irrelevant to the question of record support. 

More problematic is the majority’s assertion that Jeter’s actions, as a matter of law, 

could not have been interpreted as providing the police with consent to enter. In so 

asserting, the majority ignores caselaw establishing the possibility that consent can be 

gleaned from a person’s conduct and explicit verbal communication is not required (see

e.g. People v Vazquez, 206 AD3d 1621, 1623 [4th Dept 2022] [finding that consent to enter 

home was given through a gesture], lv denied 39 NY3d 965 [2022, Wilson, J.]; People v 

Putnam, 50 AD3d 1514, 1514 [4th Dept 2008] [finding that consent to enter was given 

where an individual left his door open and did not object to the police entry], lv denied 10 

NY3d 963 [2008]; People v Brown, 234 AD2d 211, 213 [1st Dept 1996] [finding consent 

where, in response to a request from police to enter an apartment an individual walked 

away from the door, leaving it open], affd 91 NY2d 854 [1997]; People v Gonzalez, 222 

AD2d 453 [2d Dept 1995] [“by the defendant’s conduct, she effectively consented, if not 

explicitly, then tacitly, to the police officers’ entry and presence in her home by failing to 

ask them to leave or in any other manner indicating that they did not have her permission 

to remain”], lv denied 88 NY2d 848 [1996]; People v Washington, 209 AD2d 817, 818-

819 [3d Dept 1994] [finding that consent to enter a home was given when the person 

opening the door stepped aside to allow police to enter], lv denied 85 NY2d 944 [1995]; 

People v Taylor, 111 AD2d 520, 521 [3d Dept 1985] [the “defendant’s conduct in stepping 

back from the open door amounted to consent for the officers to enter”], lv denied 66 NY2d 
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618 [1985]; see also United States v Sabo, 724 F3d 891, 893-894 [7th Cir 2013] [the 

defendant consented to entry when, in response to a request to enter, he stepped back and 

to the side]; United States v Grant, 371 Fed Appx 228, 229 [2d Cir 2010] [the defendant 

consented to entry when he opened the door to his apartment building and, in response to 

officers asking to speak to him, turned and walked into his apartment]).

The few Appellate Division cases cited in support of the majority’s holding are 

clearly distinguishable. In both People v Petrie (89 AD2d 910 [2d Dept 1982]) and People 

v Ponto (103 AD2d 573 [2d Dept 1984]), police were granted entry to a home by a thirdparty resident, but required additional consent to search a specific bedroom, which that 

third party did not have the authority to give. The relevant question here is whether Jeter 

had apparent authority to give consent for the police to enter the apartment, not whether he 

had the authority to consent to a search of a specific room within that apartment. While, 

as the majority states, guests may sometimes answer a knock at their host’s door, it was 

not unreasonable under the circumstances presented in this particular case for police to 

believe that Jeter had the authority to consent to entry, given that he had apparently just 

emerged from that apartment (see People v Adams, 53 NY2d 1, 9 [1981] [search proper 

where “the circumstances reasonably indicate that (an) individual . . . (had) the authority 

to consent”]).

Relatedly, although the majority suggests otherwise (majority op, at 11), this is not 

a situation in which the police claimed consent to search an entire building based merely 

on someone opening the exterior door of a multi-family residence. To be sure, consent to 
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enter the common areas of a multi-family building does not give police the authority to 

enter every apartment in that building (see People v Gordon, 36 NY3d 420, 426-27 [2021]). 

However, the question here is limited to whether there was sufficient evidence in the record 

before the suppression court to support a finding that Jeter consented to police both entering 

the small common vestibule and continuing through the open door into the apartment that 

he had just come from. 

Any number of perfectly reasonable hearing court judges might have determined 

based on this record that there was only consent to enter the vestibule and not the apartment, 

or even that there was no consent at all. Our role at this Court, however, is not to substitute 

our judgment for that of the hearing court but rather to decide whether there was any record 

support for the determination reached below (see People v Morales, 42 NY2d 129, 138 

[1977] [explaining that even if the issue of whether consent was given is “open to dispute, 

our power to review . . . is limited”], cert denied 434 US 1018 [1978]). Here, because the 

testimony of the arresting officer regarding his interaction with Jeter supports the 

determination that Jeter consented to police entry into the apartment, our analysis must end 

there. I would therefore affirm the Appellate Division order.

Order reversed and case remitted to Supreme Court, Kings County, for further 

proceedings in accordance with the opinion herein. Opinion by Chief Judge Wilson.

Judges Rivera, Troutman and Halligan concur. Judge Cannataro dissents in an opinion, in 

which Judges Garcia and Singas concur.

Decided November 21, 2023