Opinion
02495/2009.
Decided January 25, 2010.
HON. CYRUS R. VANCE, JR., District Attorney, New York County, New York, NY, Brigid Harrington, Esq. Of Counsel, for the People.
THEODORE M. HERLICH, ESQ., New York, NY, for the Defendant.
Defendant was indicted and charged with one count of criminal possession of a controlled substance in the first degree [PL § 220.21 (1)] and other related charges. By decision and order dated November 5, 2009, Supreme Court, Trial Term (Lewis Bart Stone, J.) ordered a Payton hearing. On November 13, 2009, this court conducted a Payton hearing during which the People called one witness, NYPD Police Officer Mayobanex Peralta of the 34th Precinct. Defendant testified at the hearing.
The Payton hearing was conducted with regard to the police initial warrantless entry into apartment #27 located at 520 Audubon Avenue and the seizure of a blue bag containing cocaine from one bedroom in the apartment.
At the time of the hearing Officer Peralta was a four-year veteran of the NYPD.
FINDINGS OF FACT
The court finds the testimony of Police Officer Peralta and defendant to have been credible. On May 19, 2009, at approximately 7:35 P.M. Police Officer Mayobanex Peralta responded to Academy Street in New York County pursuant to a radio run. On arrival he spoke to the driver of a delivery truck who told him that he had parked his vehicle containing large drums and boxes of food to be shipped to the Dominican Republic in front of a building, he took some of the boxes inside of the building and, upon returning, the delivery truck was missing. Officer Peralta and the driver went to the 34th Police Precinct, where he spoke to Charles Canaanan, the owner of the trucking company, Salcedo Cargo Express. While the conversation was in progress, the police were notified that the truck had been located. Officer Peralta then responded to 192nd Street and Audubon Avenue, where he observed the truck parked in front of a fire hydrant.
After speaking with the superintendent of the building at 540 Audubon Avenue, Officer Peralta viewed surveillance video from cameras located outside the building, which showed two individuals, later identified as Julio Goico and Miguel Castillo, unloading the truck and taking its contents into 520 Audubon Avenue. The superintendent identified one of the individuals in the video, Julio Goico, as a person who was staying in apartment 27 at 520 Audubon Avenue. A few moments later, Miguel Castillo, the second individual from the surveillance video, was observed leaving the building. He told the police that he was leaving from his aunt's house, apartment 27, at 520 Audubon Avenue.
Officer Peralta requested backup officers, stationed one officer on the roof, another in the backyard and, with his sergeant, went to apartment 27, and at approximately 10 P.M., knocked on the door. Defendant opened the door and Officer Peralta was able to observe, from his vantage point outside the apartment, boxes with lettering "Salcedo Express" inside the apartment in the hallway. Officer Peralta asked defendant how many people were in the apartment, she responded, "Her nephews," and pointed to the first bedroom to the left.
Officer Peralta could see that the door to the first bedroom was open and several men were present inside the room. At about that time, he received a radio communication from Officer Nuñez, who was stationed on the roof, that an individual, later known to be Julio Goico, was attempting to climb out the window from that apartment. Officer Nuñez yelled for the person to go back inside the apartment. Officer Peralta then directed all individuals to exit the apartment. Five people, including defendant, exited the apartment and stepped out into the hallway where they were questioned. The police then went inside the apartment and conducted a security check to determine whether anyone else was present inside the apartment. While in the first bedroom, Officer Peralta noticed an open blue bag with a drawstring located on top of the bed containing a large bag of what appeared to be cocaine and a digital scale. The police removed the bag and its contents to the 34th Police Precinct and vouchered it. The next day the police applied for and received a search warrant for that apartment..
This court makes no findings with regard to the issuance and execution of the search warrant for this apartment
Defendant testified that her apartment is located on the second floor at 520 Audubon Avenue. On May 10, 2009, she rented the front bedroom in her apartment to an individual named Jose Torres. On May 19, 2009, at approximately 7:00 P.M., she returned home after being hospitalized for five days and found that a lock had been placed on the door to the room she had rented to Torres. At the time the police arrived, her "nephews," Raphael Vasquez and Andre Santana, together with Jose Torres, were inside the room. When the police arrived, they called out for the men to come out, the men opened the door and came out into the hallway.
The men were not, in reality, her nephews. They have a close relationship and that is how she refers to them.
CONCLUSIONS OF LAW
To move to suppress the evidence found in the first bedroom, defendant would have to show that she had a legitimate expectation of privacy in the premises searched. The United States Supreme Court, as well as the New York Court of Appeals, have steadfastly required a defendant to establish her standing to challenge the seizure of tangible evidence by demonstrating a reasonable expectation of privacy in the premises searched or the property seized. Rakas v Illinois, 493 US 128 (1978); United States v Salvucci, 448 US 83 (1980); People v Ponder, 54 NY2d 160 (1981); People v Rodriguez, 69 NY2d 159 (1987); People v Wesley, 73 NY2d 351 (1989).
Standing is a fundamental and threshold issue which a movant must address. The burden of establishing standing is borne solely by the defendant who seeks to challenge the search or seizure at issue. Ponder, supra, 54 NY2d at 166; Rodriguez, supra, 69 NY2d at 163. Such a showing is necessary because a "person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed." Rakas v Illinois, supra, 439 US 128, 134 (1978). Thus, the defendant bears the burden of establishing that her own Fourth Amendment rights were violated by the challenged search and seizure. Rakas v Illinois, supra, 439 U.S. at 131
Contrary to the People's memorandum of law, the court requested the parties brief the issue of standing with regard to the contraband recovered from the sub-tenant's room and not whether defendant had standing to contest the validity of the search warrant.
Defendant asserts that because the first bedroom is a part of her home she has standing to challenge the intrusion into that first bedroom. A person who resides in his or her house and has free access to the entire house has a reasonable expectation of privacy in every area of the house, even if the person only lives in a part of a house. People v Love, 152 AD2d 925 (4th Dept 1989). Here, however, while defendant's connection to her home may have been sufficient to afford her standing to contest a general search of her home, under defendant's own version of the facts, she had no standing to contest the police search of the sub-tenant's room.
In her post-hearing brief, defendant argues that although the first bedroom and the contraband that it contained belonged to the man who lived there, she still had an expectation of privacy which society recognizes as reasonable, because the lock was installed by him while she was not present. During the hearing, defendant's position was that she did not possess the recovered drugs. She testified that the police seized the drugs from the bedroom that she had previously rented to Jose Torres.
Significantly, defendant did not testify that prior to her hospitalization, she had access to this room after she had rented it to Torres. Furthermore, defendant never testified that she kept anything in that bedroom or, after renting it to Torres, had access to clean the room. On the testimony before this court, the only evidence supports the conclusion that the first bedroom was under the control of Torres alone and not that of defendant, at the time of the search. Thus, defendant does not have standing to challenge the search of that bedroom. Cf. People v McClean, 122 AD2d 379, 381 (3rd Dept 1986) (a person has no expectation of privacy in the bedroom of a co-occupant of an apartment in which the two people reside), aff'd on other grounds, 69 NY2d 426 (1987). See also People v Rosa (NYLJ, June 11, 1996 at 33, col 2-3) (defendant, who was an absentee landlord, failed to establish any basis for an expectation of privacy to an apartment leased to a tenant); United States v Brown, 961 F2d 1039, 1041 (2d Cir 1992) (suppressing gun evidence because "a land[lord] is not ordinarily vested with authority to authorize a search of premises leased to a tenant"); People v Ponto, 103 AD2d 573 (2d Dept 1984) ("The prevailing rule in this and a number of other jurisdictions is that the lessor of real or personal property lacks the requisite authority to consent to a warrantless search of the leased property.")
The mere fact that defendant was not present when the lock was installed is insufficient to establish an expectation of privacy in her favor. Since that room was set aside for the leasee's exclusive use and possession, it follows that defendant had no reasonable expectation of privacy as to it or its contents. Indeed, the fact that Torres placed a lock on the door indicated that defendant's access to this bedroom was restricted; apparently Torres was the only one who had a key to this bedroom and the record was devoid of testimony that he had conferred any authority over or access to the bedroom (or the items inside it) to defendant.
Defendant further argues, in the alternative, a different theory of standing. She asserts that although she might not have standing to contest the search of the first bedroom, she had standing to contest the police entry into that area of her apartment from the front door to the doorway of Torres' bedroom. Since the police made their observations of the interior of Torres's bedroom from a vantage point inside the apartment, in which defendant had a reasonable expectation of privacy, as recognized in Payton, she argues that any contraband seized pursuant to those observations must be suppressed. Defendant's argument is without merit. In general, although private hallways inside a person's apartment are protected under Payton, no contraband was seized in that area where defendant had a reasonable expectation of privacy.
As the contraband was seized from the first bedroom, a place where defendant had no reasonable expectation of her own privacy, she cannot claim standing to contest its admissibility.
This constitutes the decision and order of the court.