The defendant was indicted for the crimes of Attempted Murder in the Second Degree, Assault in the First Degree, Assault in the Second Degree, Criminal Possession of a Weapon in the Fourth Degree and Resisting Arrest. The charge of Resisting Arrest has been dismissed. A Mapp/Huntley/Dunaway hearing was held on February 20, 2007 on defendant's motion to suppress physical evidence and statements. The only witnesses were Police Officer Nicholas Otarola, Sergeant Michael Mc Kenna and Police Officer Shimicka Meadows, who were called to testify by the People. The court finds their testimony credible and makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

On March 31, 2006 at about 10:15 p.m., Police Officer Nicholas Otarola, who was assigned to the 113th Precinct, responded to a report of an assault in progress at 114-21 158th Street in Queens County. As he pulled up and exited the car, he was approached by an hysterical female with blood on her shirt. This woman, later identified as Lakeisha, told him that her sister, who was inside the premises, was hurt and needed help.

The officer entered the premises, a private house, and encountered a staircase leading to the second floor. He observed blood smeared on the door and along the wall of the staircase. Officer Otarola went upstairs and saw a woman, Tameka Harris, covered with [*2]blood and badly cut up, lying on the floor in one of the bedrooms.Her daughter, who appeared to be fourteen or fifteen years old, was with her. Tameka Harris told the officer that her husband had done this to her and that he was in the other bedroom. He was also informed that the defendant had threatened to kill himself. The officer checked the door of the other bedroom, which also had blood on it, and determined that it was locked.

Officer Otarola moved Tameka Harris downstairs and into the living room, with the help of her sister and daughter. The officer then called for an ambulance and emergency services. The ambulance arrived and removed Tameka Harris to Mary Immaculate Hospital. Personnel from the emergency services unit arrived simultaneously with the ambulance. They had received a report that there was a barricaded perpetrator on the second floor.

Sergeant Michael McKenna, a twenty-two year veteran of the New York Police Department, assigned to emergency services since 1991, was part of the unit that responded. He and the other officers from emergency services formed a line up to second floor. The lead officer kicked in the door to the locked bedroom in which the perpetrator had barricaded himself. When Sergeant McKenna, last in line, reached the second floor and entered the bedroom, he observed a closet on the left and opened the door. The sergeant began emptying the closet contents and noticed the top of a man's head. The man was the defendant, James Paul. The defendant was immediately handcuffed by Sergeant McKenna, brought downstairs, and turned over to the 113th Precinct officers. He was removed to Jamaica Hospital for treatment for lacerations on his head and chest.

Police Officer Otarola testified that he went to Mary Immaculate Hospital to check on the condition of the complainant and then returned to the precinct. While at the precinct, an officer presented him with articles that had been collected at the crime scene by the evidence collection unit. These items, which consisted of three knives, two irons and clothing, were vouchered by Officer Otarola under voucher numbers 078380, 078381, and 078382.

The articles vouchered by Officer Otarola had been collected by Police Officer Shimicka Meadows of the Queens South Evidence Collection Unit. She was notified of the assault at about 11:00 p.m. and responded to the location to collect evidence. She saw the house in disarray and started taking photographs. There were coats on the foyer floor; knives and other kitchen utensils all over the kitchen floor. The victim's young daughter, told the officer that her parents were having an argument in their bedroom and she heard

her mother screaming. She and her aunt went into the bedroom, whereupon she witnessed her father stabbing her mother. The girl said she took a knife and stabbed her father to get him off her mother.

Officer Meadows went upstairs, accompanied by the young girl. A uniformed police officer was stationed outside the master bedroom, safeguarding the premises. He told her that there had been a domestic incident. The door to the bedroom was half-off the hinges, the furniture was overturned, and there were clothes strewn about. Officer Meadows [*3]observed a large knife on the floor near the door. The bed was covered with blood and there was a hole, with blood around it, in the wall near the bed. Another knife was on the floor next to the bed. The first knife was a long butcher knife, and the other one was a small sharp paring knife. Officer Meadows took photographs of the room and the knives, and boxed up the knives for vouchering. She found a household iron on the floor of the master bedroom, and she boxed it for vouchering.

The officer proceeded to enter the daughter's bedroom. Therein he found another knife which the daughter said she had used to stab her father in order to get him off her mother. This knife was boxed for vouchering and the officer took photos of this room which had blood all over. Further, she spotted another household iron, with blood on it, at the bottom of the attic stairs. The daughter told Officer Meadows that her father had struck her aunt with that iron, and the officer boxed it for vouchering.

Officer Meadows returned to the living room. There she found the victim's bloody and slashed clothing which items had been removed by the EMS personnel. She bagged this clothing for vouchering and spoke briefly to the victim's sister. Before she left, Officer Meadows turned over the property she had packaged to an officer from the 113th Precinct. The property was subsequently delivered to Officer Otarola who vouchered it.

Sometime after 7:00 a.m., the defendant was released from Jamaica Hospital and brought to the 113th Precinct. Officer Otarola took the defendant from the holding area to the fingerprint machine. Otarola testified that while he was fingerprinting the defendant, and without any questioning or provocation, the defendant made a statement. The defendant said that he was the one who needed help, that his sister-in-law was trying to attack him and he pulled his wife in front of him to prevent the attack. The officer finished fingerprinting the defendant and returned him to the holding cell from where the defendant was taken to Central Booking. Otarola had not read the defendant his Miranda warnings before he brought him to the fingerprint machine.

CONCLUSIONS OF LAW

Initially, at issue is the lawfulness of the police entry into the house where the defendant was found barricaded in a closet. It is well settled law that the police are prohibited "from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest." (Payton v. New York, 445 US 573, 576). An exception to the warrant requirement exists where, as in the instant case, the police are responding to an emergency. The response of the police to the report of an assault in progress at defendant's home fell within this exception and justified their entry without a warrant.(See Brigham v. Stuart, 126 S. Ct. 1943; Warden v. Hayden, 387 US 294;

People v. Molnar, 98 NY2d 328; People v. Mealer, 57 NY2d 214, cert. denied 460 US 1024; People v. Dixon, 281 AD2d 430). Moreover, the complainant's sister, who resided in the house, directed Officer Otarola to assist the complainant who was inside the house. [*4]Therefore, the police lawfully entered the premises with the consent of an occupant. (See People v. Cosme, 48 NY2d 286; People v. Johnson, 202 AD2d 966; People v. Davis; 120 AD2d 606).

The warrantless search conducted by emergency services to apprehend the defendant was justified. The emergency doctrine allows a limited search in order to apprehend the perpetrator of a violent crime. The defendant had just committed a vicious assault upon his wife and was barricaded in a closet in the house where his family, including a young daughter, resided. He had threatened to kill himself. It was imperative for the police to apprehend him. The scope of the search for the defendant by emergency services was "limited by and reasonably related to the exigencies of the situation" and clearly proper. (People v. Reilly, 190 AD2d 695; also see Brigham v. Stuart, supra ; People v. Hodges, 44 NY2d 553; People v. Bossett, 124 AD2d 740; People v. Gordon, 110 AD2d 778). The police had the implicit consent of his wife to search the house for the defendant who had stabbed her and locked himself in one of the bedrooms. As a co-occupant of the house, she had the authority to consent to the warrantless search conducted by emergency services. (See People v. Cosme, supra; People v. Miloro, 22 AD 3rd 768; People v. Schof, 136 AD2d 578).

After entering the house in response to an emergency situation, the police were entitled to seize evidence in plain view, without obtaining a search warrant. (See People v. Dzebolo, 29 AD 3rd 817; People v. Carl, 19 AD 3 rd 505; People v. Dixon, 281 AD2d 430; People v. Reilly, supra). The subsequent entry and seizure of that evidence by the evidence collection unit was proper "even through the crime scene, by that time, had been secured by the police and the emergency had abated, because a continued police presence was maintained, the items seized were in plain view, and the seizure was within several hours of the initial entry" (People v. George, 7 AD 3rd 810, 811; also see People v. Neulist, 43 AD2d 150). Therefore, the evidence (knives, irons and clothing) recovered by the officer from the evidence collection unit is admissible at trial.

The statement made by the defendant while he was being fingerprinted by Officer Otalaro was volunteered by him without questioning or provocation by the police officer. Volunteered statements were specifically exempted from the requirement that incriminating statements be preceded by warnings and a waiver of rights in order for them to be used against a defendant (Miranda v. Arizona), 384 US 436. Therefore, this statement is admissible at trial, although it was made before the defendant was administered the Miranda

warnings. (See People v. Torres, 21 NY2d 49; People v. Stacks, 2007 NY Slip Op 695; People v. Smith; 21 AD 3rd 587; People v. Franklin, 288 AD2d 751; People v. Sturdivant, 277 AD2d 607).

Accordingly, the defendant's motion to suppress physical evidence and statements is denied. [*5]

This memorandum shall constitute the Decision and Order of the Court.

The Clerk is directed to forward copies of this Decision and the accompanying Order to the attorney for the defendant and to the People.

Date: April 27, 2007

Darrell L. Gavrin, J.S.C.