People v. Jones

MULVEY, J.

Teresa C. Mulliken, Harpersfield, for appellant.

Stephen K. Cornwell Jr., District Attorney, Binghamton (David M. Petrush of counsel), for respondent.

Before: EGAN JR., J.P., LYNCH, ROSE and MULVEY, JJ.

MULVEY, J.Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered June 11, 2015, convicting defendant upon her plea of guilty of the crime of criminal possession of a controlled substance in the third degree.

In April 2014, a confidential informant purchased heroin on two occasions from defendant's boyfriend, Arthur Anderson, at an apartment located in the Village of Endicott, Broome County where defendant's friend resided. Members of the City of Binghamton Police Department thereafter obtained and executed two search warrants. The first warrant, for defendant's person, produced no narcotics and the second warrant, for the apartment, disclosed heroin secreted in cans with false bottoms. Packaging materials and face masks containing the DNA of defendant and Anderson, believed to be drug paraphernalia, were also found in the apartment.

Defendant was thereafter charged in an eight-count indictment with three counts of criminal possession of a controlled substance in the third degree and other crimes stemming from, as relevant here, the search of the apartment. Defendant moved to suppress, among other things, the physical evidence found in the apartment, claiming that the search warrant was not supported by probable cause and was defective, and requested a Darden hearing. At the hearing on defendant's omnibus motion, County Court denied her We affirm. Defendant lacked standing to challenge the search warrant or the search of the apartment pursuant to that warrant. A "defendant seeking suppression of evidence [has] the initial burden of showing sufficient grounds for the motion based on sworn allegations of fact" and "such grounds necessarily include a showing of standing-that is, a legitimate expectation of privacy in the searched premises" ( People v. Wesley, 73 N.Y.2d 351, 358–359, 540 N.Y.S.2d 757, 538 N.E.2d 76 [1989] ; see CPL 710.60 ; People v. Scully, 14 N.Y.3d 861, 864, 903 N.Y.S.2d 302, 929 N.E.2d 364 [2010] ; People v. Ramirez–Portoreal, 88 N.Y.2d 99, 108, 643 N.Y.S.2d 502, 666 N.E.2d 207 [1996] ). Where, as here, criminal charges are "predicated on ordinary constructive possession principles, standing is available only if the defendant demonstrates a personal legitimate expectation of privacy in the searched premises" ( People v. Tejada, 81 N.Y.2d 861, 862, 597 N.Y.S.2d 626, 613 N.E.2d 532 [1993] [internal quotation marks, brackets and citation omitted] ). Defendant did not submit a personal affidavit or any proof from which it could be concluded that she had such an expectation of privacy with respect to the apartment, which was not her residence, and her motion papers are devoid of any allegations of fact supporting such an expectation. Her "presence in an apartment in which [s]he did not reside did not confer standing upon [her] to challenge the search and seizure in that apartment" ( id. at 863, 597 N.Y.S.2d 626, 613 N.E.2d 532 ; see People v. Jones, 47 A.D.3d 961, 963–964, 849 N.Y.S.2d 681 [2008], lvs. denied 10 N.Y.3d 808, 812, 857 N.Y.S.2d 41, 46, 886 N.E.2d 806, 811 [2008] ; compare People v. Cleveland, 14 A.D.3d 798, 799, 788 N.Y.S.2d 262 [2005], lv. denied 4 N.Y.3d 829, 796 N.Y.S.2d 584, 829 N.E.2d 677 [2005] ). Further, the affidavit of her attorney, who lacked personal knowledge, "will not suffice" ( People v. Cleveland, 14 A.D.3d at 799, 788 N.Y.S.2d 262 ).

Accordingly, as defendant failed to allege facts establishing her standing to challenge the search of the apartment and seizure of the drugs and paraphernalia, her motion to suppress was properly denied without a hearing (see CPL 710.60[3][a], [b] ; 76 N.Y.2d 792, 559 N.Y.S.2d 997, 559 N.E.2d 691 [1990] ; see generally People v. Crooks, 27 N.Y.3d 609, 612–613, 36 N.Y.S.3d 440, 56 N.E.3d 222 [2016] ).