Opinion
November 3, 1977
Judgment of conviction, Supreme Court, Bronx County, rendered on October 13, 1976, unanimously modified, on the law and on the facts, to the extent of reversing the conviction for criminal possession of controlled substance in the third degree, on defendant's plea of guilty to that charge under the first count, granting defendant's motion to suppress the cocaine under that count and dismissing that count and, as so modified, the judgment is affirmed. The first count of the indictment is based on what we believe to have been an illegal search which resulted in the finding of the drug, to wit: cocaine, by the police. The entry into the apartment of the defendant was proper and not illegal under the circumstances which confronted the police. They found the defendant suffering from gunshot wounds in the hall outside of her apartment. Although the defendant drifted in and out of a state of consciousness, she did inform the police that she lived in the apartment and that a small Spanish man had attempted to rob her. Not knowing whether the alleged culprit was still in the apartment the police decided to force open the door and entered into same. There was a cursory search of the apartment during which the articles which are the basis of counts two and three of the indictment were observed in plain view. A short time later the police returned and made a more thorough search, broke into a locked tool box and opened a valise found under the bed. This led to the discovery of the cocaine which is the basis of the first count of the indictment. This search was illegal and the motion to suppress should have been granted as to it.
Concur — Kupferman, J.P., Birns, Capozzoli and Lane, JJ.