People v Gardner
2007 NY Slip Op 08607 [45 AD3d 1371]
November 9, 2007
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, January 16, 2008

The People of the State of New York, Respondent, v Everett Gardner, Appellant.

[*1] Frank H. Hiscock Legal Aid Society, Syracuse (Gerald T. Barth of counsel), for defendant-appellant.

William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel), for respondent.

Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.), rendered July 22, 2005. The judgment convicted defendant, upon his plea of guilty, of assault in the first degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of assault in the first degree (Penal Law § 120.10 [4]), defendant contends that Supreme Court erred in refusing to suppress physical evidence and other information obtained as a result of the illegal entry into the home of a third party, resulting in his warrantless arrest. We reject that contention. "Ordinarily, a warrant is required to arrest a suspect in his [or her] home or in a place where he [or she] has a reasonable expectation of privacy" (People v Matus, 166 AD2d 464, 465 [1990], lv denied 76 NY2d 1022 [1990], citing Payton v New York, 445 US 573 [1980]). Indeed, "[a] warrantless arrest in a suspect's home or a place in which [the suspect] has a reasonable expectation of privacy is prohibited absent exigent circumstances or consent" (People v Long, 124 AD2d 1016, 1017 [1986]). Here, the suppression court determined that the third party consented to the entry of the police into the home, and we see no reason to disturb that determination (see generally People v Prochilo, 41 NY2d 759, 761 [1977]). Present—Scudder, P.J., Martoche, Smith, Lunn and Pine, JJ.