Opinion
May 3, 1971
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered August 28, 1969, convicting him of burglary in the second degree, on his plea of guilty, and imposing sentence. The appeal brings up for review an order of the same court dated November 8, 1968 which denied defendant's motion to suppress evidence. Judgment and order affirmed. Defendant was arrested while a guest in the apartment of one James Walker. Also in the apartment were Walker and Lorenzo Watts. The police had no arrest or search warrants, but did have probable cause to arrest defendant and Watts for burglary. While standing in the apartment, the arresting officer observed a jewelry chest on a shelf in an open closet and, observing that it matched the description of stolen property, he seized it. On the hearing of the motion to suppress, the learned Justice at the Criminal Term ruled that defendant, as a guest in the apartment, lacked standing to seek suppression, citing as authority for his position the cases of People v. Cefaro ( 21 N.Y.2d 252) and People v. Cardaio ( 30 A.D.2d 843, affd. 24 N.Y.2d 988). We are of the opinion, however, that defendant had standing to seek suppression. Unlike the defendants in Cefaro and Cardaio, who were not on the premises at the time of the search, this defendant was a guest of Walker, in the apartment, when the police seized the evidence. Defendant was lawfully on the premises and had a right to believe he would be free from an unreasonable intrusion (cf. Katz v. United States, 389 U.S. 347). He is thus a person aggrieved by an unlawful search, with standing to move for suppression ( Jones v. United States, 362 U.S. 257; People v. Brown, 34 A.D.2d 108; Code Crim. Pro., § 813-c). However, the order denying suppression and the ensuing judgment of conviction should be affirmed because the stolen jewelry chest was in open view and could therefore be properly seized without a search warrant ( Harris v. United States, 390 U.S. 234). Latham, Acting P.J., Shapiro, Gulotta, Christ and Benjamin, JJ., concur.