The Fourth Department determined (1) the search of defendant’s premises and the seizure of switchblade was not justified by the emergency exception to the warrant requirement and (2) the criminal possession of a weapon conviction must be dismissed as an inclusory concurrent count of criminal possession of a weapon third:
The court reasoned that the officer’s entry into defendant’s residence was justified under the emergency exception to the warrant requirement, which permits a warrantless search where ” ‘(1) the police . . . have 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 and this belief [is] grounded in empirical facts; (2) the search [is] not . . . primarily motivated by an intent to arrest and seize evidence; and (3) there [is] some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched’ ” … . … [T]he first and third elements of the emergency exception were not present at the time the officer entered defendant’s residence because defendant had been secured prior to that time and the officer who conducted the search testified that he did not believe there was anyone else in the residence at that time … .
We therefore modify the judgment by granting that part of defendant’s omnibus motion seeking to suppress the switchblade knife and defendant’s statements relating to the switchblade knife, reversing that part of the judgment convicting defendant of CPW in the third degree as it relates to the switchblade knife, and dismissing count 4 of the indictment … . People v Lee, 2024 NY Slip Op 00718, Fourth Dept 2-9-24
Practice Point: At the time the officer entered defendant’s residence and seized a switchblade all parties had been secured and removed from the residence. The emergency exception to the warrant requirement did not apply.