Defendant is charged with criminal possession of a weapon, among other things. A combined Dunaway, Huntley, Mapp, Payton hearing was held before the court.

On March 26, 2009, Police Officer Michelle Wickham and Detective Chris Wright of PSA3 met with the complainant Jacqueline Lawson. They were advised that she was in fear of her boyfriend, the defendant, because he had a gun in her apartment on Flushing Avenue. The police and complainant went to the apartment with building management so that the locks could be changed to prevent the defendant's access to Ms. Lawson's apartment.

The complainant gave Detective Wright the keys to her apartment. He knocked on the door and receiving no answer started to open the door with the keys. The door was then opened from the inside. Detective Wright said "police" and the individual behind the door tried to shut it. The detective grabbed his hand and pulled the defendant out of the apartment at which time he asked "what is this, a warrant?" He was searched and a gun magazine was found in his pants. Mr. [*2]Keyes stated "it's a magazine to a pellet gun."

Once the defendant was secure, Officer Wickham and Detective Wright entered the apartment and saw two guns which were recovered.

The defendant was taken to PSA3 and read his Miranda rights by Detective John Miata. He agreed to make a statement and detailed how he came into possession of the gun.

Dunaway

The police had reasonable cause to arrest the defendant. A known informant, Ms. Lawson, whose credibility they could assess, told them defendant's gun was in her apartment. They found a magazine on him and guns in his apartment.

Mapp

The search of the apartment was lawful, and the contraband recovered was in plain sight on a washing machine and shelf. Ms. Lawson gave the police her keys and permission to enter her home. The fact that the defendant did not is of no consequence under the facts presented in this case. "An individual who possesses the requisite degree of control over specific premises is vested in [her] own right with the authority to permit an official inspection of such premises, regardless of the wishes of a co-occupant (People v Cosme, 48 NY2d 286, 292).

Although the Supreme Court, in Georgia v Randolph, 547 US 103, indicated that a co-tenant may stop police entry by expressly objecting to the other's consent, the facts in this case are distinguishable. First, Ms. Lawson was the lawful tenant of the apartment. The defendant was merely a guest, present by her permission which was revoked by her calling the cops and changing the locks. Second, the defendant's actions of opening and then attempting to shut the door created an exigency. Evidence could be destroyed or discarded by a lone suspect and there is also great danger when a potentially armed suspect essentially barricades himself behind a closed door (see, Georgia v Randolph, footnote 6). Therefore, the police conduct was justified.

Payton

For the same reason, there was no violation of Mr. Keyes' constitutional rights under Payton v New York, 445 US 573. Ms. Lawson obviously wanted defendant arrested if he were in her apartment because she gave Detective Wright her keys. The fact that the defendant attempted to thwart police entry by shutting the door in no way obviates this. It is clear that Ms. Lawson, by her actions, knowingly, freely and voluntarily consented to police entry into her home and the apprehension of the defendant. As stated above, that was her right, not defendant's.

As mentioned above as well, Detective Wright was justified in pulling the defendant out of the apartment since exigent circumstances existed. He had knowledge that a gun was in the apartment and that it belonged to the complainant's live-in boyfriend. When the door suddenly opened and then shut after he identified himself as a police officer, the detective could not know who was behind the door. To allow an armed man, fending off lawful authority, to barricade himself in an innocent person's apartment could easily have escalated to a stand-off situation imperiling the complainant, police and neighbors.

Huntley

Defendant's statement made at the scene about a warrant and the magazine were spontaneous and not the result of police questioning and will not be suppressed.

The defendant's statements to Detective Miata at PSA3 was made after he knowingly, intelligently and voluntarily waived his right not to speak to the police and will not be [*3]suppressed. Although the notice served on the defense pursuant to CPL 710.30 did not contain the entire statement, it was sufficient to advise him of its sum and substance so that he was aware of it to give him adequate opportunity to move to suppress it (People v Lopez, 84 NY2d 425; People v Henderson, 4 AD3d 616; People v Reid, 215 AD2d 507).

This constitutes the Decision and Order of the court.

____________________________

Matthew J. D'Emic

J.S.C.