AD4 order dated June 12, 2015, affirming judgment of conviction. Decision below: 129 AD3d 1467, 12 NYS 3d 402. Lippman, Ch. J., granted leave December 28, 2015.

ISSUES PRESENTED: (1) Search & Seizure: Whether the warrantless entry into defendant’s apartment was justified by exigent circumstances where the subject weapon was a knife, not a gun. (2) Whether counsel was ineffective for failing to object to certain comments on the prosecutor’s summation, including that defendant’s silence upon arrest evidenced his guilt. (Assigned counsel: David C. Schopp, The Legal Aid Bureau of Buffalo, Inc., 237 Main St., Suite 1602, Buffalo, NY 14203.)

Issue before the Court: Whether there were exigent circumstances to justify the police entry into the defendant’s home without a warrant?

 

Held: A four-judge majority ducked the question.  Whether there were “exigent circumstances” is the quintessential “mixed question of law and fact.”  Since there was support in the record for the Appellate Division’s finding of exigent circumstances, the issue was beyond the power of the Court of Appeals to review.  The majority said of Judge Rivera’s lengthy dissent that it resolved inferences in favor of the defendant, a no-no in the review of facts by the Court of Appeals.

 

CAL Observes: Judge Rivera, in her dissent, disputed that she was doing anything but analyzing the facts as presented below.   Joined in the dissent by Judge Stein, she recounts the evidence indicating the complete lack of any exigency leading up to the police entry.  Her narrative is pretty convincing, but the “mixed question” hurdle is, in general,  hard to overcome, even if unevenly applied.