Opinion
1054 KA 16–00677
10-05-2018
The PEOPLE of the State of New York, Respondent, v. Daryl RUCKER, Defendant–Appellant.
FRANK H. HISCOCK, LEGAL AID SOCIETY, SYRACUSE (BRITTNEY CLARK OF COUNSEL), FOR DEFENDANT–APPELLANT. DARYL RUCKER, DEFENDANT–APPELLANT PRO SE. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (NICOLE K. INTSCHERT OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK, LEGAL AID SOCIETY, SYRACUSE (BRITTNEY CLARK OF COUNSEL), FOR DEFENDANT–APPELLANT.
DARYL RUCKER, DEFENDANT–APPELLANT PRO SE.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (NICOLE K. INTSCHERT OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, upon his plea of guilty, of assault in the second degree ( Penal Law § 120.05[3] ), defendant contends that County Court erred in refusing to suppress tangible evidence and statements obtained as a result of the warrantless entry of the police into his residence. We reject that contention. The police were justified in entering the residence based on exigent circumstances, i.e., the statements of defendant's fiance´e that she needed help and that defendant, who was inside the residence, had her infant child (see Georgia v. Randolph , 547 U.S. 103, 118–119, 126 S.Ct. 1515, 164 L.Ed.2d 208 [2006] ; People v. Molnar , 98 N.Y.2d 328, 332–333, 746 N.Y.S.2d 673, 774 N.E.2d 738 [2002] ; People v. Parker , 299 A.D.2d 859, 860, 750 N.Y.S.2d 405 [4th Dept. 2002] ).
We reject defendant's further contention that the testimony of a police officer at the suppression hearing was tailored to nullify constitutional objections and was incredible as a matter of law (see People v. Knighton , 144 A.D.3d 1594, 1594, 40 N.Y.S.3d 695 [4th Dept. 2016], lv denied 28 N.Y.3d 1147, 52 N.Y.S.3d 298, 74 N.E.3d 683 [2017] ; People v. Holley , 126 A.D.3d 1468, 1469, 6 N.Y.S.3d 840 [4th Dept. 2015], lv denied 27 N.Y.3d 965, 36 N.Y.S.3d 626, 56 N.E.3d 906 [2016] ). "Nothing about the officer['s] testimony was unbelievable as a matter of law, manifestly untrue, physically impossible, contrary to experience, or self-contradictory," and we therefore discern no basis in the record to disturb the suppression court's decision to credit the officer's testimony ( Knighton , 144 A.D.3d at 1594–1595, 40 N.Y.S.3d 695 [internal quotation marks omitted]; see People v. Wilmet , 161 A.D.3d 1587, 1587–1588, 76 N.Y.S.3d 919 [4th Dept. 2018], lv denied 32 N.Y.3d 942, 84 N.Y.S.3d 869, 109 N.E.3d 1169, 2018 WL 4331540 [Aug. 9, 2018] ; People v. Walters , 52 A.D.3d 1273, 1274, 860 N.Y.S.2d 710 [4th Dept. 2008], lv denied 11 N.Y.3d 795, 866 N.Y.S.2d 622, 896 N.E.2d 108 [2008] ).
Finally, we conclude that the sentence is not unduly harsh or severe.