Opinion
June 27, 1988
Appeal from the County Court, Suffolk County (Seidell, J.).
Ordered that the judgment is modified, on the law, by reversing the defendant's conviction of kidnapping in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
It is well settled that probable cause, by itself, does not justify a warrantless nonconsensual intrusion into a defendant's home (Payton v New York, 445 U.S. 573). However, where exigent circumstances exist, the failure of the police to procure a warrant is excusable (Payton v New York, supra; People v Mealer, 57 N.Y.2d 214, cert denied 460 U.S. 1024). In determining whether exigent circumstances exist so as to justify such an entry the following factors must be considered: "`(1) the gravity of the offense; (2) whether there is reason to believe that the suspect is armed; (3) whether there is reasonably trustworthy information to believe that the suspect committed the crime involved; (4) whether there is a strong reason to believe that the suspect is in the premises being entered; and, (5) likelihood that the suspect will escape if not swiftly apprehended (Dorman v United States, 435 F.2d 385; see also, People v Martin, 50 N.Y.2d 1029, 1031, n 2)'" (People v Mathis, 132 A.D.2d 626, 628, lv denied 70 N.Y.2d 801; see also, People v Gordon, 110 A.D.2d 778, 780).
After the commission of the crime, the police obtained a statement from a coperpetrator implicating the defendant in the abduction, robbery and assault of the victim. The information obtained from the coperpetrator also provided the police with reason to believe that the defendant was armed. Later that afternoon, photographs of the defendant were obtained from police records, and a contingent of detectives and uniformed officers responded to his last known address in an attempt to locate and place him under arrest. Upon their arrival, the officers observed a male and a female in the driveway of the residence. The male was placing what appeared to be a suitcase into a vehicle. The officers compared the photographs in their possession with the male standing in the driveway and concluded that he was the defendant. As the detectives exited their vehicle and approached the defendant, he turned and fled into the house with the detectives in close pursuit. Inside the premises, the defendant was apprehended and placed under arrest.
Based upon the foregoing, exigent circumstances existed to justify the warrantless entry into the defendant's home to place him under arrest. Accordingly, that branch of the defendant's motion which was to suppress his statement to law enforcement authorities was properly denied.
We do, however, agree with the defendant's contention that the merger doctrine must be applied in the instant action and therefore his conviction of kidnapping in the second degree must be reversed, the sentence imposed thereon vacated, and that count of the indictment dismissed (see, People v Cassidy, 40 N.Y.2d 763, 768; People v Androvett, 135 A.D.2d 640, 642, lv denied 71 N.Y.2d 892). The evidence adduced at trial revealed that any detention of the victim was incident to the commission of the underlying robbery and assault (see, People v Ortiz, 137 A.D.2d 727; People v Wachtel, 124 A.D.2d 613, lv denied 69 N.Y.2d 835).
The defendant's sentence was not excessive (see, People v Suitte, 90 A.D.2d 80).
We have examined the defendant's remaining contentions and find them to be unpreserved for appellate review, and, in any event, without merit. Mollen, P.J., Mangano, Rubin and Sullivan, JJ., concur.