New York Appellate Division Reports

PEOPLE v. FRAVEL, KA 03-02570 [4th Dept 12-22-2006] 2006 NY
Slip Op 09725 PEOPLE OF THE STATE OF NEW YORK,
PLAINTIFF-RESPONDENT, v. JOHN FRAVEL, DEFENDANT-APPELLANT.
KA 03-02570. Appellate Division of the Supreme Court of New
York, Fourth Department. Decided on December 22, 2006.

Appeal from a judgment of the Supreme Court, Onondaga
County (John J. Brunetti, A.J.), rendered January 23, 2003.
The judgment convicted defendant, upon a jury verdict, of
forgery in the second degree (10 counts), criminal
possession of a forged instrument in the second degree (two
counts), criminal possession of a forged instrument in the
third degree (two counts), criminal impersonation in the
second degree (three counts) and grand larceny in the third
degree (two counts).

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP
ROTHSCHILD OF COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (AUDRA
ALBRIGHT OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

PRESENT: GORSKI, J.P., MARTOCHE, SMITH, AND PINE, JJ.

It is hereby ORDERED that the judgment so appealed from be
and the same hereby is unanimously reversed on the law,
those parts of the motions seeking to suppress physical
evidence are granted, the indictment is dismissed and the
matter is remitted to Supreme Court, Onondaga County, for
proceedings pursuant to CPL 470.45.

Memorandum: Defendant appeals from a judgment convicting
him upon a jury verdict of 10 counts of forgery in the
second degree (Penal Law § 170.10 [1]), three counts
of criminal impersonation in the second degree ( §
190.25 [1]), and two counts each of criminal possession of
a forged instrument in the second degree ( §
170.25), criminal possession of a forged instrument in the
third degree ( § 170.20) and grand larceny in the
third degree ( § 155.35). The sole contention of
defendant on appeal is that Supreme Court erred in refusing
to suppress the physical evidence seized from the back of
his pickup truck as the result of a warrantless search. We
agree with defendant that the court erred in determining
that the People established that the police had reasonable
grounds to believe that there was an emergency, thus
relieving them of their obligation to obtain a search
warrant.

The record of the suppression hearing establishes that the
police responded to a 911 call received at approximately
3:55 a.m., reporting that a car alarm was sounding and that
men were arguing next to a truck in a parking lot at a
specified location. The police arrived at the parking lot
within one minute of receiving the 911 call, but they did
not hear a car alarm or see anyone in the vicinity of the
subject vehicle. The two police officers who searched the
vehicles in the area did not testify that there appeared to
be any sign of a crime against person or property. One
officer testified, however, that he observed a laptop
computer in the back of a pickup truck. The computer was in
a closed position but the power was on, and the computer
was warm. Both officers testified that they observed a
spiral notebook, a utility bill and a cloth case in the
back of the pickup truck. One officer removed the items
from the back of the pickup truck and transported them to
the police station. Upon searching the interior sections of
the cloth case, the police found several forged
identification cards containing a photograph, and one of
the officers recognized defendant as the individual
depicted in the photograph. Defendant thereafter was
arrested.

The People do not contend on appeal that the police had
probable cause for the warrantless search of the pickup
truck. Rather, they contend that the suppression court
properly determined that the warrantless search was
permissible because the police were responding to what they
reasonably believed to be an emergency situation. The record
belies that contention. Pursuant to the emergency doctrine,
the police are not required to obtain a search warrant
provided that they have, inter alia, “reasonable grounds to
believe that there is an emergency at hand and an immediate
need for their assistance for the protection of life or
property” (People v Mitchell, 39 NY2d 173, 177, cert denied
426 US 953). The burden is on the People to justify the
warrantless search (see id. at 180). Here, there is no
indication in the record that the police officers who
responded to the 911 call perceived the requisite threat to
life or property. Because the People failed to meet their
burden of justifying the warrantless search based on their
contention that there was “an emergency at hand” (id. at
177), the court erred in refusing to suppress the physical
evidence seized during the warrantless search of the pickup
truck.