The People, Respondent,v.Joseph Harris, Appellant.BriefN.Y.October 16, 2013 To be argued by ELLEN STANFIELD FRIEDMAN (20 Minutes Requested) COVER Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - JOSEPH HARRIS, Defendant-Appellant. BRIEF AND APPENDIX FOR RESPONDENT CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 danyappeals@dany.nyc.gov CHRISTOPHER P. MARINELLI ELLEN STANFIELD FRIEDMAN ASSISTANT DISTRICT ATTORNEYS Of Counsel APRIL 11, 2013 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ............................................................................................. iii PRELIMINARY STATEMENT ......................................................................................... 1 INTRODUCTION................................................................................................................ 2 THE EVIDENCE AT THE SUPPRESSION HEARING ............................................ 5 The People’s Case ....................................................................................................... 5 The Defendant’s Case .............................................................................................. 12 The Court’s Decision................................................................................................ 12 THE EVIDENCE AT TRIAL .......................................................................................... 13 The People’s Case ..................................................................................................... 13 The Defendant’s Case .............................................................................................. 21 POINT I DEFENDANT’S CONSECUTIVE SENTENCES ARE LEGAL ........................................................................................................... 21 A. ............................................................................................................................................ 22 B. ............................................................................................................................................. 30 C. ............................................................................................................................................. 32 POINT II THE HEARING COURT PROPERLY DENIED DEFENDANT’S MOTION TO SUPPRESS THE GUN RECOVERED FROM RICKY KELLY’S APARTMENT. .................. 43 A. ............................................................................................................................................ 44 B. ............................................................................................................................................. 45 -ii- C. ............................................................................................................................................. 53 CONCLUSION ................................................................................................................... 60 -iii- TABLE OF AUTHORITIES FEDERAL CASES Blockburger v. United States, 284 U.S. 299 (1932) .......................................................... 22 Horton v. California, 496 U.S. 128 (1990)......................................................................... 57 Jones v. United States, 362 U.S. 257 (1960), overruled on other grounds in United States v. Salvucci 448 U.S. 83 (1980)46, 49, 53 Maryland v. Buie, 494 U.S. 325 (1990).......................................................................... 54-56 Minnesota v. Carter, 525 U.S. 83 (1998) ....................................................................... 51-53 Minnesota v. Olson, 495 U.S. 91 (1990) ............................................................................ 52 Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357 (1998) ..................... 50 Rakas v. Illinois, 439 U.S. 128 (1978) ............................................................... 45-46, 49, 53 Rawlings v. Kentucky, 448 U.S. 98 (1980) ........................................................................ 45 Samson v. California, 547 U.S. 843 (2006) ............................................................ 47, 49-50 United States v. Brown, 484 F.Supp.2d 985 (D.Minn.2007) .......................................... 47 United States v. Burrows, 48 F.3d 1011 (7th Cir.1995) ................................................... 55 United States v. Dye, 2011 WL 1595255 (N.D. Ohio April 17, 2011) .......................... 47 United States v. Green, 560 F.3d 853 (8th Cir. 2009) ...................................................... 59 United States v. Paopao, 469 F.3d 760 (9th Cir. 2006) .................................................... 58 United States v. Rambo, 789 F.2d 1289 (8th Cir.1986) ................................................... 47 United States v Roy, 734 F.2d 108 (2d Cir. 1984) ............................................................ 47 United States v. White, 622 F.Supp.2d 34 (S.D.N.Y. 2008) ............................................ 47 United States v. Williams, 577 F.3d 878 (8th Cir.2009) ................................................... 55 STATE CASES Commonwealth v. DeJesus, 872 N.E.2d 1178 (Mass. App. Ct. 2007) .......................... 56 -iv- Commonwealth v. Matos, 935 N.E.2d 1285 (Mass. App. Ct. 2010) ............................. 56 Commonwealth v. Morrison, 710 N.E.2d 584 (Mass. 1999) .......................................... 47 People v. Albro, 52 N.Y.2d 619 (1981) ............................................................................. 44 People v. Almodovar, 62 N.Y.2d 126 (1984) .................................................................... 28 People v. Andino, 256 A.D.2d 153 (1st Dept. 1998) ....................................................... 54 People v. Arroyo, 93 N.Y.2d 990 (1999) ........................................................................... 23 People v. Bernier, 204 A.D.2d 732 (2d Dept. 1994) ........................................................ 29 People v. Borges, 69 N.Y.2d 1031 (1987) ......................................................................... 44 People v. Boyland, 20 N.Y.3d 879 (2012) ......................................................................... 44 People v. Bradford, 15 N.Y.3d 329 (2010) ........................................................................ 44 People v. Brathwaite, 63 N.Y.2d 839 (1984) ..................................................................... 24 People v. Brown, 80 N.Y.2d 361 (1992) ........................................................... 24-25, 31-32 People v. Day, 73 N.Y.2d 208 (1989) .................................................................... 22-23, 41 People v. Di Falco, 44 N.Y.2d 482 (1978) ........................................................................ 41 People v. Felix, 232 A.D.2d 228 (1st Dept. 1996) ............................................................ 29 People v. Francois, 14 N.Y.3d 732 (2010) ......................................................................... 44 People v. Frazier, 16 N.Y.3d 36 (2010) ............................................................................. 23 People v. Giles, 73 N.Y.2d 666 (1989)......................................................................... 44, 51 People v. Green, 103 A.D.2d 362 (2nd Dept. 1984) ........................................................ 55 People v. Hamilton, 4 N.Y.3d 654 (2005) ................................................................... 25, 27 People v. Harris, 96 A.D.3d 502 (1st Dept. 2012) .......................................................... 4-5 People v. Hernandez, 218 A.D.2d 167 (2d Dept. 1996) .................................................. 47 People v. Jose, 94 N.Y.2d 844 (1999) ................................................................................ 44 -v- People v. Laureano, 87 N.Y.2d 640 (1996) ....................................................................... 22 People v. Manor, 38 A.D.3d 1257 (4th Dept. 2007) ........................................................ 29 People v. McKnight, 16 N.Y.3d 43 (2010) .................................................................. 22, 28 People v. Neutzel, 246 A.D.2d 477 (1st Dept. 1998) ...................................................... 54 People v. Ortiz, 83 N.Y.2d 840 (1994) .................................................................. 44, 46, 49 People v. Paulman, 5 N.Y.3d 122 (2005) .......................................................................... 44 People v. Perez, 45 N.Y.2d 204 (1978) ......................................................................... 35-39 People v. Ponder, 54 N.Y.2d 160 (1981) ........................................................................... 45 People v. Ramirez, 89 N.Y.2d 444 (1996) .................................................................... 22-23 People v. Ramirez-Portoreal, 88 N.Y.2d 99 (1996) ..................................................... 45-46 People v. Rivenburgh, 1 A.D.3d 696 (3d Dept. 2003) ..................................................... 29 People v. Rodriguez, 69 N.Y.2d 159 (1987) ................................................................. 45-46 People v. Salcedo, 92 N.Y.2d 1019 (1998) ............................................................ 25, 27, 39 People v. Sanchez, 247 A.D.2d 254 (1st Dept. 1998) ...................................................... 54 People v. Sierra, 83 N.Y.2d 928 (1994) .............................................................................. 44 People v. Simpson, 209 A.D.2d 281 (1st Dept. 1994) ..................................................... 29 People v. Snyder, 241 N.Y. 81 (1925) ................................................................................ 23 People v. Sturkey, 77 N.Y.2d 979 (1991).......................................................... 29-30, 35-38 People v. Taveras, 12 N.Y.3d 21 (2009) ............................................................................ 22 People v. Walsh, 44 N.Y.2d 631 (1978) ........................................................................ 36-38 People v. Walsh, 55 A.D.2d 923 (2d Dept. 1977) ....................................................... 37-38 People v. Wesley, 73 N.Y.2d 351 (1989) ........................................................................... 45 People v. Wheeler, 2 N.Y.3d 370 (2004) ........................................................................... 44 -vi- People v. Wilkerson, 64 N.Y.2d at 750-51 (1984) ............................................................ 44 People v. Wright, 19 N.Y.3d 359 (2012) ......................................................... 22, 25-28, 39 People v. Yong Yun Lee, 92 N.Y.2d 987 (1998) .............................................................. 23 STATE STATUTES CPL 200.50(7) ....................................................................................................................... 34 CPL 300.40 ....................................................................................................................... 36-37 CPL 310.70 ............................................................................................................................ 37 CPL 310.70(2) ....................................................................................................................... 37 CPL 470.35 ............................................................................................................................ 44 N.Y. Const. Art. VI § 3(a) ................................................................................................... 44 Penal Law § 15.00(1) ............................................................................................................ 23 Penal Law § 70.25(2) ............................................................................................ 4, 22, 26-27 Penal Law § 110.00 ................................................................................................................. 1 Penal Law § 120.10(1) ............................................................................................................ 1 Penal Law § 125.25(1) ............................................................................................................ 1 Penal Law § 265.02(1) .......................................................................................................... 29 Penal Law § 265.02(4) (2006) .............................................................................................. 28 Penal Law § 265.02(4) .......................................................................................................... 29 Penal Law § 265.03(1)(b) ....................................................................................................... 1 Penal Law § 265.03(3) ...................................................................................................... 1, 28 Penal Law § 265.15(4) .......................................................................................................... 42 OTHER AUTHORITIES Kamins, New York Search and Seizure § 1.03(1) (2012) ................................................ 52 -vii- McKinney’s Session Laws of NY, ch. 742, at 1443-44 (2006) ....................................... 40 Michael Wilson, Hidden Communal Guns are More Common, N.Y. Times, Feb. 10, 2012 .................................................................................................................................. 33 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- JOSEPH HARRIS, Defendant-Appellant. BRIEF FOR RESPONDENT PRELIMINARY STATEMENT By permission of the Honorable Victoria A. Graffeo, defendant Joseph Harris appeals from a June 12th, 2012, order of the Appellate Division, First Department, which affirmed a judgment of the Supreme Court, New York County (Edward J. McLaughlin, J.), dated July 7th, 2009. By that judgment, defendant was convicted, after a jury trial, of Attempted Murder in the Second Degree (Penal Law §§ 110/125.25[1]), Assault in the First Degree (Penal Law § 120.10[1]), and two counts of Criminal Possession of a Weapon in the Second Degree (Penal Law §§ 265.03[1][b]/[3]) (possession with the intent to use unlawfully against another/possession outside one’s home or place of business). The court sentenced defendant, as a persistent violent felony offender, to an aggregate prison term of 45 years to life. In particular, the court sentenced defendant to prison terms of 25 years -2- to life for the attempted murder and assault convictions, and of 20 years to life for the two weapon possession convictions. The court imposed the sentences for assault and attempted murder to run concurrently with each other and with the sentence for criminal possession of a weapon with the intent to use it unlawfully against another. The court imposed the sentence for simple possession of a weapon outside defendant’s home or business consecutively to defendant’s sentences for attempted murder and assault. Defendant is currently incarcerated pursuant to that judgment. INTRODUCTION On September 25th, 2008, Leonard Lewis was driving in the vicinity of West 112th Street and Lenox Avenue in Manhattan, when he stopped to talk with a friend. Lewis saw a few other people he recognized standing nearby, one of whom was defendant. About 20 minutes later, while Lewis was still talking to his friend, defendant approached Lewis’s car, shook his hand, and asked, “What’s up, you all right?” When Lewis turned to look at defendant, Lewis saw that defendant was pointing a gun at him. Defendant then shot Lewis five or six times, before running across the street into a housing project. Lewis flagged down a police car, told the officer what had happened, and described the shooter. As Lewis was pulled out of his car and loaded into an ambulance, a bullet fell from his body to the ground; that bullet was recovered by the police. Minutes after the shooting, a police officer found three shell casings in the vicinity of Lenox Avenue and West 112th Street, which were also recovered. -3- At the hospital, Lewis told a detective that he had met the shooter before and that he thought the shooter’s name was “Joe” or “Joey.” A few days later, Lewis viewed a photographic array and identified defendant as the shooter. On October 6th, 2008, police officers apprehended defendant in a Queens apartment, which they entered pursuant to an outstanding arrest warrant. During a protective sweep of the apartment, a member of the Emergency Services Unit saw a gun under the living room sofa. A firearms analyst later determined that the gun was the same one that fired the bullet and shell casings found at the scene of the crime. The next day, Lewis viewed a lineup and identified defendant as the shooter. By New York County Indictment Number 5027/08 filed on November 3rd, 2008, a grand jury charged defendant with Attempted Murder in the Second Degree, Assault in the First Degree, and two counts of Criminal Possession of a Weapon in the Second Degree. Prior to trial, defendant moved to suppress the gun recovered from the apartment in which defendant had been apprehended. On April 27th, 2009, after a suppression hearing, the Honorable Edward McLaughlin denied defendant’s motion. On April 30th, 2009, defendant proceeded to trial before Justice McLaughlin and a jury; on May 8th, 2009, the jury found defendant guilty of all charges. On July 7th, 2009, the court sentenced defendant as set forth above. On appeal to the Appellate Division, First Department, defendant contended in pertinent part that the trial court erred in imposing defendant’s sentence for possessing a weapon outside his home or business to run consecutively to his prison -4- terms for attempted murder and assault and that the hearing court erred when it denied his motion to suppress the gun. On June 12th, 2012, the Appellate Division unanimously rejected defendant’s claims and affirmed the judgment of conviction. People v. Harris, 96 A.D.3d 502 (1st Dept. 2012). In pertinent part, the Appellate Division held that consecutive sentences were properly imposed under Penal Law § 70.25(2). Id. at 503. The Appellate Division further found that the hearing court properly denied defendant’s suppression motion because he lacked a reasonable expectation of privacy in the apartment where the gun was found and, thus, had no standing to contest the gun’s recovery. Id. In the alternative, the court found that the gun was recovered as the result of a lawful security sweep of the apartment. Id. Before this Court, defendant renews his claim that the sentencing court erred in imposing his sentence for possessing a weapon outside his home or business to run consecutively to his sentences for attempted murder and assault. He also insists that the hearing court erred when it denied his motion to suppress the gun. -5- THE EVIDENCE AT THE SUPPRESSION HEARING The People’s Case1 On September 25th, 2008, Detective EDWARD SIMONETTI responded to a radio transmission regarding a shooting at Lenox Avenue and West 112th Street in Manhattan (Simonetti: A70). When he arrived, Emergency Medical Services technicians were loading the victim, Leonard Lewis, into an ambulance. Lewis stated that “he had seen the guy before” and that “if he saw a picture,” he could “ID him again” (Simonetti: A70). The next day, at the hospital, Simonetti and Detective KEVIN WALLA interviewed Lewis more thoroughly (Simonetti: A71, 115-16; Walla: A157, 171). Lewis told the detectives that he had been driving on Lenox Avenue near West 112th Street when he “spotted a friend” named Alley Mo and double-parked on Lenox Avenue, just north of West 112th Street.2 Lewis was talking to Alley Mo through the open front passenger-side window when a man Lewis later identified as defendant approached Lewis’s car. Defendant was a black man, approximately 5’11” to 6’2” tall and weighing about 190 to 220 pounds. Lewis had “seen [defendant] before” and “been introduced to” him (Simonetti: A71, 121). 1 Parenthetical references to “A,” “RA,” and “DB” are to defendant’s appendix, respondent’s appendix, and defendant’ brief, respectively. 2 The court reporter at the suppression hearing transcribed the name of Lewis’s friend as “Alimo.” The court reporter at trial used the spelling “Alley Mo.” For clarity, the People will use the spelling “Alley Mo” throughout this brief. -6- Defendant asked Lewis, “Are you all right?” reached into the car, and shook Lewis’s hand. Then, defendant “pulled out a firearm and shot [Lewis] several times.” Defendant ran in front of the car and continued firing until the gun was empty. At that point, defendant ran across the street into the King Housing Projects (Simonetti: A71, 121; Walla: A158, 160, 172-73, 175). During a subsequent interview later that week, Lewis told Detective Walla that he believed that defendant’s first name was “Joey” (Walla: A160). Detective Simonetti conducted an investigation and identified defendant as a possible suspect. On September 30th, Simonetti showed Lewis a photographic array of six pictures, one of which was a photograph of defendant; Lewis identified defendant as “the motherfucker who shot me” (Simonetti: A72, 125, 127-29). Detectives Simonetti and Walla learned that defendant was on parole. On October 1st, Simonetti and Walla spoke to defendant’s parole officer, Patricia Middleton and her supervisor Senior Parole Officer RODNEY SMITH (Smith: A206). During those conversations, the detectives learned that, on September 24th, the day before the shooting, defendant had called Middleton and reported that he was “changing his address” from an apartment on 107th Street where he lived with his cousin because there was “activity going on” (Simonetti: A74; Smith: A213). Defendant told Middleton that he was “going to be staying with his aunt” in an apartment on 127th Avenue in Queens (Simonetti: A74, 125-127; Walla: A161-62, 176; Smith: A213). Middleton gave defendant permission to go there temporarily “because -7- his circumstances seemed extenuating,” but explained that the approval might be revoked (Smith: A217-18). On September 29th, Middleton called defendant’s cell phone and left a voicemail message requiring him to report to the parole office that day. Defendant failed to report. On September 30th, Middleton again called defendant and instructed him to report. That afternoon, defendant returned Middleton’s call and said that he had gone to the parole office building but left before he spoke to anyone because he did not want to “get locked up.” Middleton told defendant that he would not get locked up if he reported to parole. She also explained, two times, that he no longer had permission to live in the Queens apartment because it was the home of Ricky Kelly, defendant’s codefendant in a prior armed robbery. Defendant’s Certificate of Release to Parole Supervision “had a special condition” that defendant was not to “associate in any way or communicate by any means” with Kelly unless defendant had permission from a parole officer to do so (Smith: A209, 214, 218; Simonetti: A81, 76, 146; Walla: A163). Middleton instructed defendant to report the following day so that he could be referred to a program that housed parolees. Defendant failed to report the following day (Smith: A215). On October 1st, 2008, Parole Officer Smith issued a warrant for defendant’s arrest because he failed to report to the parole office on three successive dates (Simonetti: A75; Smith: A215-16). On October 2nd, a judge issued a “trap and trace” warrant on defendant’s cell phone number, which allowed detectives from the police -8- department’s Technical Assistance Response Unit (“TARU”) to track the phone’s calls as well as the location of the cell towers nearest to the phone (Simonetti: A76-77, 129; Walla: A164-65). On October 6th, TARU detectives told Detective Walla that they had tracked defendant’s cell phone to the apartment on 127th Avenue, in Queens (Simonetti: A77-78; Walla: A165-66). Several TARU detectives, Detective Walla, and Detective Simonetti all responded to the apartment. When Walla arrived, he smelled cigarette smoke coming from the apartment and attempted to speak to anyone who might be inside, but received no response (Simonetti: A78-79, 114, 135; Walla: A167). Subsequently, at about 4:00 p.m., Detective Simonetti arrived (Simonetti: A77-78, 114, 130). Detectives Simonetti and Walla contacted parole to let them know that they believed that defendant was in the apartment, and to ask them to execute the parole warrant (Simonetti: A79; Smith: A218, 230-32). The detectives also requested backup from the Emergency Services Unit (“ESU”) (Simonetti: A79; Walla: A167). At approximately 8:00 p.m., ESU Detective JOHN COUSINS and Police Officer Cordero arrived and attempted to communicate with the occupants of the apartment. They got no response and began to “force” open the door. At that point, someone inside said that they were going to “try and open the door,” but that the door was jammed (Simonetti: A80, 138; Walla: A168; Cousins: A190). The ESU officers finished forcing the door open and entered the apartment, using a “bunker” and a “machine pistol” for safety, as the other officers waited in a nearby stairwell -9- (Simonetti: A80, 137; Walla: A169; Cousins: A190, 193). The ESU officers saw two men in the living room and removed them to the hallway outside of the apartment (Simonetti: A81, 146; Cousins: A191). Detective Simonetti and the other officers took custody of the men – defendant and Ricky Kelly – while Detective Cousins and Officer Cordero “move[d] forward” into the apartment to look for “other possible people that were hiding inside” who “may have a gun and may shoot” (Simonetti: A81-82, 140-41; Walla: A169-170; Cousins: A193). The protective sweep was “standard procedure” in “situations such as” the one at hand, for the “safety” of both the ESU officers and “the officers that [were] coming in.” The ESU officers searched only “for people,” “not . . . evidence” (Cousins: A194). During the sweep, which took approximately one minute, Detective Cordero “flipped” the living room couches up to “make sure no one was hiding” under or behind them (Simonetti: A82-83, 141; Cousins: A194, 196, 200). Under one of the couches was a handgun (Simonetti: A83-84; Cousins: A194-95). Detective Cousins notified Simonetti that he and Cordero had “found a firearm” (Simonetti: A82, 141; Cousins: A196). Simonetti and Walla, along with Parole Officer Smith who had arrived “almost immediately” after defendant and Kelly had been handcuffed, entered the apartment, which was “a wreck” (Simonetti: A84- 85, 133-34, 145; Smith: A218-19). They saw the gun “underneath one of the couches” in the living room, which was “leaning against a wall” at a “45-degree angle” -10- with its “legs . . . exposed” (Simonetti: A84, 141; Walla: A171, 181-82; Smith: A221, 228).3 Simonetti looked for “any signs that defendant had been staying there,” but he did not find any (Simonetti: A85, 145). He observed one man’s bedroom and one woman’s bedroom. He did not see any luggage, bags, or boxes (Simonetti: A85-86, 145). He searched defendant and recovered from him a cell phone, cell phone case, ‘do rag, keys, and a chain. Simonetti did not try the keys in the lock of the apartment because the lock “had been bent” when the ESU detectives forced open the door (Simonetti: A81-82, 147, 149). Defendant did not ask anyone to retrieve clothes or any other items from the apartment (Simonetti: A86). The detectives drove defendant and Kelly to the 28th Precinct Detective Squad and interviewed them individually (Simonetti: A87, 90). Kelly told Simonetti that he lived in the apartment with his mother. Kelly said that defendant was not related to him, but was a “friend” whom “he called his God brother.” Simonetti asked Kelly whether defendant was living with him, and Kelly said, “No.” When Simonetti told Kelly that defendant had listed the address with parole as his home address, Kelly said that he was “unaware” of that (Simonetti: A92-93). According to Kelly, defendant 3 Simonetti, Walla, and Cousins testified that they had no recollection of the sofa’s exact dimensions (Simonetti: A143; Walla: A182; Cousins: A200). Simonetti further testified that he had no photographs of it (Simonetti: A136, 143). Subsequently, the People represented to the court that an officer from the Evidence Collection Unit had taken photographs of the sofa but that they had been overexposed and never developed (A238- 39). -11- “c[a]me over” to his apartment between 10:00 and 10:30 that morning, and the two “hung out,” “chill[ed],” and “smoked some weed.” When they heard a knock on the door, defendant “assumed it was parole looking for him,” and told Kelly to “stay quiet” (Simonetti: A92-93, 95). When Kelly heard someone “starting to break down the door,” he “got nervous” and thought that his mother would be “very upset.” When Kelly was not able to open the door, the police broke it down. Kelly did not know that there was a gun in the apartment (Simonetti: A92-93, 105). Subsequently, Simonetti interviewed defendant (Simonetti: A99, 151). Simonetti told defendant that he wanted to speak to him about a shooting on West 112th Street and Lenox Avenue. Defendant stated that he had “heard about it” but that he “didn’t have anything to do with it” and “didn’t know anything about it” (Simonetti: A99, 153). When Simonetti asked defendant where he was earlier in the day, defendant told him that he went to “my boy’s apartment,” which Simonetti understood to mean Kelly’s apartment (Simonetti: A99-100, 151-52). Defendant told Simonetti that he had “never been at that address before,” asked how Simonetti “knew [defendant] was there,” and said that he believed that the police had been tracking his phone. Simonetti responded that it was the address that defendant had given to parole the day before the shooting (Simonetti: A101). Defendant said that the gun was “already” in the apartment “when he got there” and that, while he had “picked it up,” he had not “use[d] it” (Simonetti: A100-01, 152-53). -12- On December 10th, 2008, Simonetti interviewed Kelly again, under a Limited Use Immunity Debriefing Agreement (Simonetti: A104). Kelly said that, prior to their arrest for armed robbery in 2002, defendant had stayed overnight with him “on occasion,” but that he had never done so for longer than “an overnight stay” (Simonetti: A106-07). Since defendant was released from prison earlier in 2008, he had never stayed overnight at Kelly’s apartment, although they had been “hanging out.” Kelly recalled seeing defendant “pull out a pistol” from his waistband about a week or two before the arrest. He was not surprised to see defendant with a gun, and stated that he was “afraid” of defendant because he “just got a way about him” (Simonetti: A107, 109). The Defendant’s Case Defendant did not present any evidence at the suppression hearing. The Court’s Decision In an oral decision, the court denied defendant’s motion in its entirety on two grounds (A295). The court first ruled that defendant had not established standing to challenge the seizure of the gun because the evidence provided “no basis whatsoever to believe” that defendant “had any expectation of privacy” in the apartment (A279). The court explained that “[i]t is folly to contend that a person would have an expectation of privacy at a place to which he is specifically prohibited from being, let alone spending the night” (A279, 287). The court found that, although defendant’s -13- parole officer had initially permitted him to go to Kelly’s apartment, by September 30th, defendant “no longer had authority” to be at Kelly’s apartment (A288). The court also ruled that an additional, independent reason for denying defendant’s motion existed: the ESU officers lawfully conducted a security sweep of the apartment during which they saw the gun in plain view. In light of the ESU officers’ duty to “make sure that there’s not somebody else lurking in the apartment with a gun and an attitude,” the court found that the ESU officers properly “flipp[ed]” the couch under which they found the gun (A284-85). THE EVIDENCE AT TRIAL The People’s Case At the time of trial, Leonard Lewis was a 42-year-old man who had been raised in the Martin Luther King housing project (“King Houses”), in Manhattan (Lewis: A355, 492).4 The King Houses extended from Lenox Avenue to Fifth Avenue, and 4 When Lewis was around 20 years old, he began selling drugs on West 112th Street (Lewis: A389-91, 447, 459-61). Over the course of 17 years, he was convicted of five drug- related felonies (Lewis: A389-90). Pursuant to a cooperation agreement, on March 17, 2009, Lewis pleaded guilty to fifth-degree possession of a controlled substance. If Lewis completed a drug program, did not get arrested again, and testified truthfully, he would be allowed to replead to a misdemeanor. If he failed to satisfy the terms of the agreement, he would be sentenced on the felony (Lewis: A416-20). Lewis was familiar with a group from his neighborhood known as “No Fear” that had been “involved in murders, robberies, and drugs” (Lewis: A427-28). Although he was never a part of the group, Lewis had testified before a grand jury regarding “No Fear.” When he was released from prison, Lewis “hear[d] a lot of talk” that “No Fear,” was going to retaliate against him, but he was never “really scared” (Lewis: A429, 433-34). After (Continued…) -14- from West 112th Street to West 115th Street. In 2008, Lewis was no longer living near the King Houses, but he came “down to the old neighborhood to visit” from “time to time” (Lewis: A393). On the morning of September 25th, 2008, Lewis gave a friend a ride to St. Nicholas Avenue, between West 113th and West 114th Streets, near the King Houses. After he dropped his friend off, Lewis went inside a nearby beauty parlor (Lewis: A393). He then drove to a restaurant on 136th Street to pick up breakfast for “a couple of girls” he had met at the beauty parlor, drove back to the salon to drop off the food, and got back into his car (Lewis: A393). At approximately 11:45 a.m. while driving on Lenox Avenue, Lewis spotted his friend Alley Mo. Alley Mo was standing outside with a few “guys [Lewis] knew from the neighborhood,” including “Jimmy,” “Bad One,” “Mookie,” and defendant (Lewis: A394, 399,496). After Lewis stopped and rolled down the front passenger-side window, Alley Mo approached the car (Lewis: A12-13, 17, 21, 98). As Lewis talked to Alley Mo, defendant remained about 18 feet “straight ahead” of Lewis talking to Bad One (Lewis: A13, 115). Lewis recognized defendant because a mutual friend, Wani, had introduced them a few months earlier, and Lewis had seen defendant “a couple of times” since then when in the neighborhood of the King Houses (Lewis: A407, 418, 470). ______________________ (…Continued) defendant shot him, Lewis “heard rumors” that he had been shot in revenge for testifying before the grand jury during the No Fear case (Lewis: A435). -15- Lewis had been “reminiscing,” “laughing,” and “joking” with Alley Mo for about 20 minutes when defendant suddenly approached Lewis’s passenger-side window. Alley Mo stepped aside and defendant reached into the car, shook Lewis’s hand, and said, “What’s up, you all right?” (Lewis: A394, 401, 403-04, 409, 476-77). Lewis got a “good look” at defendant, who was “a couple of feet away,” and saw that he was holding a gun. He replied, “Yeah, I’m all right” (Lewis: A394, 403-04, 441, 476-77, 496). “All of a sudden,” Lewis “hear[d] shots” and realized that defendant was “shooting” him (Lewis: A394, 404-05, 441, 477). Lewis heard at least five shots, and felt his “whole right side” “lock up” (Lewis: A14, 24, 96). Alley Mo exclaimed, “Oh shit!” and “everybody started running.” Defendant ran directly in front of Lewis’s car, stopped five or ten feet away, looked at Lewis through the windshield, and tried to shoot him again, but there were “no more bullets” in the gun (Lewis: A395, 405, 409, 497). Lewis got another “good look” at his face through the windshield. Apparently realizing that his gun was no longer loaded, defendant ran across the street into the King Houses (Lewis: A395). Lewis’s car was still running so he drove it a short distance, while he called his girlfriend, Tiffany (Lewis: A395, 482-83, 498-99). Lewis told her that “this kid” walked up to the car, “said what’s up,” “shook my hand,” and “shot me.” Lewis said that the shooter was a “kid Wani [had] introduced [him] to,” although Lewis did not “know his name” (Lewis: A395). -16- Lewis spotted a police car driven by Police Officer DARYL RICKS, honked his horn, and yelled, “I’m shot” (Ricks: A505). When Ricks asked what happened, Lewis told him that he was “on Lenox Avenue between 112th and 113th Street” when someone “came up to his passenger side” and “shot him several times” before running “into the King Houses” (Ricks: A507). Lewis described the shooter as a “male black, six feet tall, approximately 30 years old” and “200 pounds” (Ricks: A505, 507, 513-14). Lewis did not tell Ricks that he had recognized the shooter (Ricks: A507). Ricks radioed that there was a man who had been shot, relayed the description of the shooter, and requested an ambulance (Ricks: A506, 508, 514). Police Officer RICHARD STOKES, Detective EDWARD SIMONETTI, and a team of paramedics including JUAN GUZMAN all soon arrived (Ricks: A508; Stokes: A517-18; Simonetti: A528; Guzman: A610). Stokes found three .380 caliber shell casings near the corner of West 112th Street and Lenox Avenue (Stokes: A520, 522; Evidence Collection Unit Officer MICHAEL PENA: A653-57). Meanwhile, as Guzman and his partner pulled Lewis from his car, a bullet “from his body” fell to the ground (Ricks: A508; Pena: A653-57).5 5 Officer WILSON GERMOSEN from the Evidence Collection Unit later dusted the passenger side doors of Lewis’s car and found four latent fingerprints (Germosen: A672). Detective CYNTHIA RAMIREZ from the Latent Prints Unit analyzed the prints and found that they did not match known fingerprints from either Lewis or defendant (Ramirez: A695). -17- As the paramedics were loading Lewis into the ambulance, Detective Simonetti spoke to him. In response to questions from Simonetti, Lewis said that he “didn’t know” the shooter, but that he would be able to identify the shooter if he saw him again either in a photograph or in person (Simonetti: A528-29, 566). At the hospital, surgeons determined that Lewis had been shot five or six times: three times in his torso, once in his left arm, and once or twice in his right arm (Deputy Chief Medical Examiner LAURA GOLDFEDER: A627, 636-37). Lewis was bleeding profusely and one of the gunshots had shattered his clavicle, while another bullet had broken his vertebrae (Goldfeder: A631-32, 634; Lewis: A411). On September 26th, 2008, while Lewis was at the hospital, Detective Simonetti interviewed him (Lewis: A411-412; Simonetti: A:530). Lewis told Simonetti that he had been driving on Lenox Avenue between West 112th Street and West 113th Street when he stopped to talk to a friend. Someone whom Lewis had previously met through a friend approached him, “pulled out a gun,” and “started shooting at him” (Lewis: A:412-13; Simonetti: A531, 567).6 Lewis did not remember the shooter’s name that day (Simonetti: A532). While he was at the hospital, Lewis spoke to some friends over the telephone to “find out [the] name” of the person who shot him (Lewis: A438-39, 492). When Simonetti spoke to Lewis again later in the week, Lewis 6 Simonetti asked Lewis why he did not tell him the day before that he recognized the shooter, and Lewis replied that “things just happened real fast” and, as he began to be able to “concentrat[e]” on what had happened, he started to “remember more details” (Simonetti: A533). -18- told him that he believed the shooter’s name was “Joe” or “Joey” (Lewis: A493; Simonetti: A532). During the interviews at the hospital, Simonetti showed Lewis over 2,000 digital photographs of people who matched the description of the shooter that Lewis had provided – none of which was a photograph of defendant – and Lewis did not pick any of them out as the shooter (Simonetti: A536-38). On September 30th, 2008, while Lewis was still in the hospital, Simonetti showed Lewis an array of six new photographs, and Lewis identified defendant as the shooter (A910; Simonetti: A538). A week after the shooting, Lewis was released from the hospital (Lewis: A399). Before allowing him to leave, doctors immobilized Lewis’s arm by putting it into a sling and limited his mobility by putting him into a lower back brace (Goldfeder: A632-33). Lewis “didn’t have any feeling” in his legs or right arm, and he could “barely walk” (Lewis: A411-12). At the time of trial, Lewis continued to suffer “loss of nerve function” (Goldfeder: A632-33; Lewis: A399, 411, 435). Meanwhile, after Lewis identified defendant from the photo array, Detective Simonetti obtained defendant’s cell phone number and an “address where he might be staying” on 127th Avenue, in Queens (Simonetti: A539). Simonetti, who had been given a prior warrant for defendant’s arrest, obtained a warrant for a “trap and trace” on defendant’s cell phone (Simonetti: A540, 546). On October 6th, 2008, officers of the Technical Assistance Response Unit informed Simonetti that defendant was at the Queens address (Simonetti: A540). -19- Simonetti went to the apartment at 4:00 p.m. and met several other detectives there, including Detective Kevin Walla. Walla said that the apartment door was locked, but that he had smelled cigarette smoke coming from inside. He told Simonetti that he tried to communicate through the door but no one answered (Simonetti: A540-41). At about 6:10 p.m., ESU officers, including Detective JOHN COUSINS, arrived. Cousins and the other ESU detectives opened the door, entered the apartment and saw two men inside (Simonetti: A543; Cousins: A701-02, 706-07). Detective Simonetti took custody of the men, whom he identified as defendant and Kelly, and elicited pedigree information. Defendant was 30 years old, 6’1” tall, and weighed 205 pounds. Kelly was 24 years old, 5’10” tall, and weighed 155 pounds (Simonetti: A553-54). Meanwhile, beneath a sofa in the apartment, Detective Cousins found a loaded Beretta nine millimeter semi-automatic pistol (Simonetti: A544, 574- 75; Cousins: A707-09; Evidence Collection Unit Detective JAMES HOPKINS: A721- 23, 737). Subsequently, Detectives PETER OGGERI and JOHN KRALJIC from the Firearms Analysis Section received the gun, eight rounds of ammunition, and the bullet and shell casings recovered from the scene of the shooting (Hopkins: A731, Oggeri: A773; Kraljic: A791). Oggeri determined that gun and the ammunition were -20- operable (Oggeri: A778). Kraljic determined that the bullet and cartridge casings had all been fired from the gun (Kraljic: A795).7 On October 7th, 2008, Detective Simonetti conducted a line-up at the 28th Precinct from which Lewis identified defendant as the shooter (Simonetti: A548-50). Simonetti arrested defendant and asked him if he wanted to call someone to come pick up his personal property. Defendant called Wani Jones, who came to pick up the property (Simonetti: A558, A565). Defendant’s cell phone records showed that, between 7:53 a.m. and 8:24 a.m. on the day of the shooting, calls to or from the cell phone were being routed through a cell tower in Queens. By 9:43 a.m., calls were being routed through various cell towers in Manhattan. At around 11:00 a.m., defendant made and received calls while near the northeast side of Central Park, including making calls to contacts that were listed in his phone as “Bad” and “Mo” at 11:06 and 11:09, respectively. The records placed defendant near the location of the shooting between 11:11 a.m. and 1:43 p.m., and showed that he placed a call to “Bad” at 11:49 a.m. and to “Mo” at 11:51 a.m. (Verizon Representative RENADA LEWIS: A802, 814; District Attorney Analysts ALEXAD ALLPHIN: A817; TANYA FAWCETT: A840-843, 850-52; RA1-5 7 NANA LAMOUSE-SMITH, a criminalist with the Office of the Chief Medical Examiner, analyzed the results of a latent fingerprint examination and determined that there were no usable fingerprints on the gun (Lamouse-Smith: 372, 375). -21- [People’s Exh. 25 B-D, 27 B-C]). Finally, the phone records showed that defendant called his grandmother, who lived in the King Houses, at 11:55 a.m. (Fawcett: A851). At trial, Lewis identified defendant as the man who shot him (Lewis: A406, 427). The Defendant’s Case Defendant did not present any evidence at trial. POINT I DEFENDANT’S CONSECUTIVE SENTENCES ARE LEGAL (Answering Defendant’s Brief, Point II). On September 28th, 2008, Leonard Lewis paid a visit to his “old neighborhood” in Manhattan. At about 11:45 a.m., Leonard Lewis stopped to talk to his friend, Alley Mo. Defendant was standing nearby and was armed with a loaded, operable firearm. Lewis had been talking to Alley Mo for about 20 minutes when defendant walked over to the passenger side of Lewis’s car, pulled out his gun, and shot Lewis five or six times. For these acts, the jury convicted defendant of attempted second-degree murder, first-degree assault, and two counts of second-degree possession of a weapon (the first count for possession of a weapon with the intent to use it unlawfully against another and the second for possession of a weapon outside of defendant’s home or business). Defendant now insists that the imposition of his sentence for possession of a weapon outside his home or business to run consecutively to his sentences for -22- attempted murder and assault violated the restrictions on such punishment in Penal Law section 70.25(2) (DB: 43). He is wrong. A. It is entirely the prerogative of the legislature to proscribe conduct as criminal and to decide how to punish that conduct. See Blockburger v. United States, 284 U.S. 299, 301 (1932); People v. Day, 73 N.Y.2d 208, 212 (1989). In New York, Penal Law § 70.25(2) sets out when a trial court may impose consecutive sentences on a defendant for multiple convictions. That section provides that consecutive sentences may not be imposed either: (1) where “a single act [or omission] constitutes two offenses” or (2) where “a single act [or omission] constitutes one of the offenses and a material element of the other.” People v. Laureano, 87 N.Y.2d 640, 643 (1996); see People v. McKnight, 16 N.Y.3d 43, 48 (2010); People v. Taveras, 12 N.Y.3d 21, 25-26 (2009). To determine whether concurrent sentences are mandated, a sentencing court must first “examine the statutory definitions of the crimes for which [the] defendant has been convicted.” See People v. Wright, 19 N.Y.3d 359, 363 (2012); Taveras, 12 N.Y.3d at 25; Laureano, 87 N.Y.2d at 643. And, since both prongs of Penal Law § 70.25(2) refer to the “act or omission which constitutes the offense,” it is the “actus reus” of a crime “that must inform any inquiry” regarding the legality of consecutive sentences under Penal Law § 70.25(2). People v. Ramirez, 89 N.Y.2d 444, 451 (1996). -23- The term “act” is narrowly defined by statute as “a bodily movement.” Penal Law § 15.00(1). Ordinarily, “consecutive sentences may be imposed when either the elements of the crimes do not overlap or if the facts demonstrate that the defendant’s acts underlying the crimes are separate and distinct.” Ramirez, 89 N.Y.2d at 451. Thus, the question of when, as a factual matter, a single criminal episode is separable into distinct events justifying consecutive sentences is hardly novel. For consecutive sentencing purposes, this Court’s long-settled rule can be simply stated: consecutive sentences are permissible if “up to a particular point the acts of a defendant constitute one crime and the acts of the defendant, committed thereafter, constitute a second crime.” See Day, 73 N.Y.2d at 212 (quoting People v. Snyder, 241 N.Y. 81, 83-84 (1925)). Over the past 30 years, this Court has routinely applied that rule to uphold consecutive sentences for separate, successive criminal acts that arose from the same criminal episode. See, e.g., People v. Frazier, 16 N.Y.3d 36 (2010) (convictions for burglary and grand larceny; the burglary was completed upon the defendant entering the apartment with the intent to commit a crime therein; the ensuing theft was a separate crime); People v. Arroyo, 93 N.Y.2d 990 (1999) (convictions for conspiracy to commit murder and attempted murder; the conspiracy was completed upon the meeting and agreement of the co-conspirators; the shooting occurred later that night); People v. Yong Yun Lee, 92 N.Y.2d 987 (1998) (convictions for burglary of doctor’s -24- office and robbery of the doctor and his wife; the burglary was completed upon the defendant entering the premises; the ensuing robberies were distinct acts); People v. Brathwaite, 63 N.Y.2d 839 (1984) (convictions for the murder of the store’s owner and clerk during the course of the robbery; the killings were the product of separate, successive acts of gunfire). This Court has also applied the same rule when evaluating the legality of consecutive sentences for two crimes, one of which is a continuing possession crime. In People v. Brown, 80 N.Y.2d 361 (1992), this Court upheld the imposition of consecutive sentences for the defendant’s convictions of criminal possession of stolen property and reckless endangerment. In that case, the police observed a reported stolen vehicle stopped at a red traffic light; Brown was the driver. When the police asked Brown to pull over, he drove onto a sidewalk, injuring several pedestrians, and then fled on foot. Id. at 362-63. This Court held that Brown’s subsequent act of driving the stolen vehicle into pedestrians on the sidewalk was a “legally and factually attenuated act, distinct from the mere continuing unlawful possession” of the vehicle. Id. at 364. The Court explained that the defendant’s “discrete acts – possession and propulsion of the vehicle – impacted different victims, were separated by place and were temporally differentiated, though in part overlapping.” Thus, “the possessory and substantive crimes were not of the ‘single act’ variety for which consecutive sentencing authority is forbidden.” Id. -25- In discussing prior cases involving possession of a weapon that might have suggested a contrary result, the Court observed that Brown’s discrete acts of “possession and propulsion of the vehicle” were “distinguishable by culpable mental state, nature and manner of use, time, place and victim.” Id. at 364-65. Because Brown “did not initially possess the stolen vehicle for the purpose of recklessly endangering the lives of others,” this Court concluded that “defendant’s possession of the vehicle was accompanied by a culpable mental state significantly discrete” from the act of reckless driving. Id. at 364 (emphasis in original). In People v. Wright, 19 N.Y.3d at 365, this Court clarified that it applied a slightly “different framework” for determining the “propriety of consecutive sentencing in the context of weapon possession offenses” that reflects the “heightened level of integration between the possession and the ensuing substantive crime for which the weapon was used.” Id. Eschewing a simple comparison of statutory elements, the Court stated that, to determine whether a single act constituted both a weapon possession offense and an ensuing crime involving the use of that same weapon, the relevant question is “when the crime of possession – necessarily encompassing both actus reus and mens rea elements – was completed.” Id. at 365 (citing People v. Salcedo, 92 N.Y.2d 1019, 1022 [1998]; People v. Hamilton, 4 N.Y.3d 654, 658 [2005]). The Court explained that a weapons crime is not “completed” until both the actus reus element and any mens rea element have been satisfied, and unless -26- the mental state of the possession crime was “discrete from that of the underlying crime.” Wright, 19 N.Y.3d at 365. Notably, Wright dealt with the imposition of consecutive sentences for possession of a weapon with unlawful intent and first-degree murder for intentionally killing one person and, as part of the same transaction, killing a second victim with the intent of doing so or causing him or her serious physical injury. The evidence at trial demonstrated that a series of escalating disputes between two groups of people culminated in the defendant verbally confronting several members of the rival group. Defendant then drew a gun and shot one member of the group several times, and a second person once, killing them both. Wright, 19 N.Y.3d at 362. “[U]nder the circumstances presented” in Wright, this Court held that Penal Law § 70.25(2) mandated concurrent sentences for the murder and weapon possession convictions. Regarding possessory offenses, the Court explained that “to decide when one act of possession ends and another begins, in applying a statute that prohibits possession with a particular intent, we look to the point at which the relevant intent changes.” Thus, the Court continued, “in applying such a statute it is necessary to consider intent in order to identify the act or acts that constitute the crime” Wright, 19 N.Y.3d at 365-66 (emphasis added). This Court found the People had not proven that “the defendant’s possession was marked by an unlawful intent separate and distinct from his intent to shoot the victims.” The Court stressed that, in summation, the prosecutor had “People theorized that defendant possessed the gun -27- with unlawful intent, because he “actually did use the gun unlawfully against two others.” Therefore, because the weapon possession crime was “completed only upon the shootings,” Penal Law § 70.25(2) required the sentence on the possession crime to run concurrent with the sentence for the shooting. Id. at 367. That holding was consistent with this Court’s precedent in People v. Hamilton, 4 N.Y3d 654 (2005). In Hamilton, the defendant was seen “peeking out” of a doorway at a group of four men that included the two victims. When one of the victims said he was about to leave, the defendant went inside, “immediately emerged with a gun in his hand,” and, after a verbal dispute, shot the departing man and a second victim. Regarding motive, the People presented evidence that the defendant mistakenly believed that the two victims had stolen a gun from the defendant’s cousin. Under those circumstances, the Court found consecutive sentences unlawful. Id. at 656. Conversely, in People v. Salcedo, 92 N.Y.2d 1019 (1998), the evidence demonstrated that defendant, while in continuous possession of a loaded firearm, initially intended to use the weapon to force his ex-girlfriend to speak with him; the possession crime was completed at that point; a separate offense was committed when defendant subsequently formed the intent to kill the victim and shot her. In that instance, the Court upheld the imposition of consecutive sentences. Id. Significantly for present purposes, this Court in Wright was careful to distinguish the crime of possession of a weapon with the intent to use it unlawfully from the crime of simple weapon possession outside of a person’s home or place of -28- business.8 This Court observed that simple gun possession is defined solely in terms of the defendant’s “dominion and control” of the weapon, and lacks any specific mens rea element. On the other hand, the crime of possession with the intent to use unlawfully contains an additional specific intent element. Id. at 366-67. Because the simple gun possession crime does not include a specific intent element that might overlap with the intent to commit a specific crime, it will typically be completed before the ensuing crime. Therefore, consecutive sentences would be permissible, regardless of what specific end a defendant intended to put the weapon to when he took possession of it. See id. at 366 (it is “necessary to consider intent in order to identify the acts or acts that constitute the [possession] crime” when “applying a statute that prohibits possession with a particular intent”); see generally, McKnight, 16 N.Y.3d at 50 (possession is “complete once the defendant has dominion and control of a weapon; there are no more acts he can take to advance that offense”); People v. Almodovar, 62 N.Y.2d 126, 130 (1984) (“[o]nce the unlawful 8 In Wright, the Court contrasted the “third degree possession statute . . . which defines the crime solely in terms of dominion and control…” with possession of a weapon with the intent to use it unlawfully. 19 N.Y.3d at 366-67 (internal citations omitted). Prior to 2006, possession of a loaded firearm outside one’s home or place of business constituted third-degree weapon possession. Penal Law § 265.02(4) (2006). Such criminal conduct has since been classified as second-degree weapon possession. Penal Law § 265.03(3). -29- possession of the weapon is established, the possessory crime is complete and any unlawful use of the weapon is punishable as a separate crime”).9 To be sure, in some instances, circumstances may require concurrent sentences for simple weapon possession and a related crime. For example, after analyzing the particular facts in People v. Sturkey, 77 N.Y.2d 979 (1991), this Court found that simple weapon possession and a crime committed with the weapon were committed by an “inseparable” act. In that case, the defendant wrestled with a police officer 9 Indeed, lower courts have frequently recognized that consecutive sentences may be imposed for simple gun possession and an ensuing use of that gun in a separate criminal act so long as the defendant knowingly had dominion and control over the weapon before the other crime. See, e.g., First Department: People v. Felix, 232 A.D.2d 228, 229 (1st Dept. 1996) (upholding imposition of consecutive sentences for attempted murder, criminal use of a firearm, and simple weapon possession; observing “there was evidence that defendant possessed the weapon and placed it in the back seat of a car before accosting the victim and shooting her”); People v. Simpson, 209 A.D.2d 281, 282 (1st Dept. 1994) (upholding imposition of consecutive sentences for manslaughter and simple weapon possession; a witness had seen “defendant put a gun in the front of his pants” moments prior to the shooting; upon such evidence, the court held that defendant’s possession of a weapon “was complete prior to the shooting”); Second Department: People v. Bernier, 204 A.D.2d 732, 733 (2d Dept. 1994) (upholding the imposition of consecutive sentences imposed for criminally negligent homicide and weapon possession; “The defendant was charged with criminal possession of a weapon in the third degree under Penal Law § 265.02(1), which required the People to prove that the defendant possessed a firearm and had been previously convicted of any crime. Each of these elements were satisfied before the shooting took place.”); Third Department: People v. Rivenburgh, 1 A.D.3d 696, 701 (3d Dept. 2003) (upholding the imposition of consecutive sentences for intentional murder and simple gun possession; the evidence established that defendant “carried the .38 caliber revolver on his person at all times prior to its seizure. Thus, the crime of possessing a loaded firearm (see Penal Law § 265.02[4]), while continuous, was completed long before he formed the intent to kill Hurd with this weapon, and shooting him was a discrete act”); Fourth Department: People v. Manor, 38 A.D.3d 1257, 1259 (4th Dept. 2007) (“We further conclude, however, that the sentences imposed for criminal possession of a weapon in the third degree, which crimes were completed prior to the shooting, may run consecutively to the sentence imposed for murder in the second degree”). -30- attempting to arrest him, gained possession of the officer’s gun, and brandished the gun for “two or four seconds” before dropping the weapon. Thus, in that instance, the gun was actually the fruit, rather than an instrumentality, of the robbery. And, because the defendant gained dominion and control over the gun by the very act of his robbery, this Court found that, “[u]nder the facts of this case, the robbery and possession offenses were committed through the single act of seizing the gun” and, thus, sentences for robbery and third-degree weapon possession had to be concurrent. Id. (emphasis added). Of course, the circumstances here were very different. B. Here, consecutive sentences were properly imposed on defendant’s simple weapon possession conviction, on the one hand, and his attempted murder and assault convictions, on the other hand. Although the possessory crime was ongoing, defendant completed his knowing possession of a weapon outside his home or business well before committing the ensuing crimes with the weapon. The evidence showed that Leonard Lewis visited his “old neighborhood” in Manhattan only from “time to time” (Lewis: A393). On September 28th, 2008, Lewis paid one of his irregular visits, running errands, including picking up breakfast for some “girls” he just met (Lewis: A393-94). Afterward, Lewis happened to see his friend Alley Mo. When defendant pulled over to talk to Alley Mo, he saw that defendant was standing on the corner with a group of other men. Only after Lewis -31- had been talking to Alley Mo for about 20 minutes, did defendant walk over to Lewis’s car, shake his hand, and asked him how he was doing. After Lewis answered, defendant pointed a gun and began shooting him. There was no evidence whatsoever that defendant obtained the gun only immediately before approaching Lewis. In fact, the evidence left no doubt that it was defendant’s own gun, that he brought with him to Lenox Avenue and West 112th Street on the morning of the shooting, that he used to shoot Lewis. In that regard, when the police apprehended defendant in his friend’s apartment on October 6th, they found the gun that defendant used to shoot Lewis in the same apartment. That is, the evidence showed that defendant continued to possess the gun for 11 days following the shooting. That defendant had the gun days after the shooting, and that he brought it with him to his friend’s apartment that day, was compelling evidence that he had possessed the gun all along. In other words, it was evidence that the gun that he used to shot Lewis was his own gun that he brought with him to West 112th Street and Lenox Avenue at least 20 minutes before the shooting. Defendant then held onto the gun because it was his. The evidence that defendant possessed the gun before Lewis even arrived at the scene of the shooting created not only a temporal and physical distinction between the two crimes, but also indicated that the purpose behind his initial possession was not to shoot Leonard Lewis. See Brown, 80 N.Y.2d at 364. After all, defendant does not claim – and cannot plausibly – that he knew that Lewis – who visited the neighborhood of the crime only once in a while – was coming to Lenox -32- Avenue and West 112th Street that morning. Indeed, defendant’s presence in the same neighborhood as Lewis that day was entirely coincidental. Thus, defendant plainly possessed the gun before he was even aware of Lewis’s presence in the neighborhood, much less formed an intent to murder him. And, defendant’s possession of a loaded gun certainly posed a threat to potential victims other than Lewis. See generally Brown, 80 N.Y.2d at 364. Taken together, all of these factors show that defendant’s possession of the gun was distinct from his later use of it. In turn, the sentencing court lawfully imposed the sentence for the possessory crime to run consecutively to those for defendant’s other offenses. C. Defendant’s arguments to the contrary are unavailing. Foremost, defendant claims that, simply because no eyewitness observed defendant with the gun until he used it to shoot Lewis, there was no trial evidence at all that defendant possessed it at any point prior to the shooting (DB: 42, 52, 54). Thus, according to defendant, “he could have easily procured the weapon at any time up to actually using it” (DB: 52). In particular, defendant urges, in light of the fact that “the motivation for shooting Lewis was retaliation for providing grand jury testimony against a gang,” it “could be” that a “confederate” on the street corner, “perhaps Bad One” gave defendant the weapon “at the last second and ordered him to shoot Lewis.” Alternatively, -33- defendant contends, the gun that defendant used might have been a “community gun” that defendant picked up from a secret hiding spot right before shooting Lewis (DB: 43, 52-54). But all of that is sheer speculation and, anyway, is disproved by the record. As just discussed, the trial proof demonstrated that the gun, in fact, belonged to defendant. Conversely, there was no evidence whatsoever that Bad One, or anyone else, handed defendant the gun at the last minute and ordered him to shoot defendant. Moreover, defendant premises his “community gun” theory on a New York Times article published four years after the shooting (DB: 43, citing Michael Wilson, Hidden Communal Guns are More Common, N.Y. Times, Feb. 10, 2012). Nonetheless, the article only serves to refute defendant’s thesis, by explaining that community guns are “[h]idden and shared by a small group of people who use them when needed, and are always sure to return them.” Id. (emphasis added). Here, of course, defendant never returned the gun to a communal hiding spot, to Bad One, or to anyone else.10 Rather, defendant was still in possession of the gun 11 days after shooting. Despite defendant’s baseless contention otherwise (DB: 53), that evidence 10 Similarly, defendant relies on the article to insist that the number of community guns “appear[s] to be rising in number in New York” (DB: 43). In fact, the article itself equivocates that “perhaps it’s not that there are more communal guns, but rather, that they are easier to identify through forensic science.” Wilson, Hidden Communal Guns are More Common, N.Y. Times, Feb. 10, 2012. -34- showed that it was defendant’s own gun, which he brought with him to the street corner that morning, and used to shoot Lewis.11 Perhaps recognizing that the trial evidence does not support his view of the case, defendant looks elsewhere for support. Defendant musters the felony complaint, the indictment, and the bill of particulars to insist that the People “specifically alleged” that the weapon possession and the shooting “occurred at the same time” (DB: 51). But defendant’s attempt to use general language in the People’s charging documents to his advantage is to no avail. In fact, the complaint and the indictment simply charged defendant with conduct “on or about September 25th, 2008” and “in the County of New York” (A6-9). In a Voluntary Disclosure Form, the People indicated nothing more than an “[o]ccurrence” at “[a]pp[roximately]” 11:50 a.m. on September 25th, 2008, at “112th Street and Lenox Avenue” (A10). But, of course, these documents are merely intended to serve a defendant with notice of the crimes of which he has been charged. Indeed, indictments are not supposed to contain “allegations of an evidentiary nature. ” CPL 200.50(7). Plainly, it 11 Defendant also argues, albeit summarily, that there was no proof that the gun was “loaded and operable” – an element of the possession crime – until it was fired, “a moment that [was] instantaneous to the shooting.” Thus, defendant claims, the possession and shooting were “committed in a single act” (DB: 43-44 n. 4). But that conflates the specific proof with reality by ignoring even the most undeniable inferences to be drawn from the proof. Obviously, the gun was loaded and operable before the exact instant it was fired. Indeed, a gun’s operability often will not be proven until weeks or months after a possession crime, with a ballistics test. But that fact does not show that there was not proof that the weapon was loaded at the time of its recovery from a defendant. -35- makes no sense for defendant to pretend that the People were alleging that defendant possessed a loaded firearm for just the few seconds it took him to empty the weapon into Leonard Lewis. Rather, the allegations encompassed defendant’s conduct that morning, including the 20 minutes he was standing on the corner when Lewis arrived at West 112th Street and Lenox Avenue through all the actions he undertook thereafter. Equally unpersuasive is defendant’s related claim that the People made no effort until sentencing to establish that defendant “lived his daily life in the possession of a loaded handgun” (A1054), because, at trial, the People “never asked Lewis if he saw anything” in defendant’s hand before the shooting (DB: 51). As explained above, the fact that no one saw defendant with a gun prior to the shooting does not refute the conclusive circumstantial proof that defendant, in fact, possessed the gun well before he encountered Lewis. There simply was no inconsistency between that proof and the People’s arguments at sentencing.12 Defendant argues at length that the circumstances of the crimes at issue here are on all fours with the those in Sturkey, 77 N.Y.2d at 979, People v. Perez, 45 12 In summation, the People suggested that phone calls with Bad One and Alley Mo at 11:06 a.m. and 11:09 a.m., respectively, might have summoned defendant to West 112th Street and Lenox Avenue (A954). In fact, though, Lewis testified that defendant was already there when Lewis pulled over (Lewis: A394, 399, 496). In any event, even if defendant had had some advanced warning that Lewis was on the corner, it would not change the fact that it was coincidental that Lewis and defendant – with his gun – were in the same neighborhood that day. -36- N.Y.2d 204 (1978), and People v. Walsh, 44 N.Y.2d 631 (1978) – cases where this Court found that weapon possession and an additional crime involving the same weapon arose from the same act (DB: 48-49, 56, 58). But each of those cases is easily distinguishable from the situation at hand. To begin, Sturkey is the only one of the cases in which the issue before the Court was the legality of consecutive sentences. In Sturkey, 77 N.Y.2d at 979, as noted in Section A above, this Court found that robbery of a police officer’s weapon, and simple possession of that weapon, were committed by an “inseparable” act. In that case, the defendant wrestled with a police officer attempting to arrest him, gained possession of the officer’s gun, and brandished the gun for “two or four seconds” before dropping the weapon. In that instance, because the defendant gained dominion and control of the gun by his very act of robbery, this Court found that, “[u]nder the facts of this case, the robbery and possession offenses were committed through the single act of seizing the gun” and, thus, sentences for robbery and third- degree weapon possession had to be concurrent. Id. Neither Walsh nor Perez squarely addresses the legality of consecutive sentences. Rather, in Perez, 45 N.Y.2d at 204, the Court considered whether a conviction for robbery while the defendant was “armed with and used and threatened the immediate use of” a knife should have constituted a dismissal as a lesser included offense of a count of possession of a knife with the intent to use it unlawfully, pursuant to Criminal Procedure Law 300.40. Id. at 204, 208. This Court held that the -37- weapon possession was not a lesser-included crime of robbery, because the two convictions “constitute[d] separately cognizable and statutorily proscribed wrongs.” Id. at 210. The Court noted “the serious danger to the public posed by individuals who possess weapons” and ruled that, “as a matter of policy, the Legislature could not have intended that a weapons possession charge . . . merge with the greater crime of robbery.” Id. at 210. Thereafter, in dicta, this Court stated that any “harsh[ness]” in the defendant’s conviction for both robbery and weapon possession was mitigated by the “statutory proscription” against consecutive sentences in that particular circumstance. Id. at 211. But, in that case, the evidence was that an accomplice handed the defendant a knife just as they approached their robbery victim. Id. at 207- 08. Thus, as in Sturkey, the defendant’s taking possession of the weapon and using it in a crime were a single act. In Walsh, the Court considered the proper interpretation of Criminal Procedure Law 310.70 to determine whether it permitted retrial on counts of assault and weapon possession following an acquittal on an attempted murder charge. In finding retrial barred, the Court conclusorily stated that all three counts arose out of an “inseparable event” and that the counts were “consecutive” within the meaning of Criminal Procedure Law 310.70(2). Id. But, before the Appellate Division, the People had conceded that the weapons count was concurrent to the assault charge – a concession that reflected the state of the law prior to Perez, 45 N.Y.2d 204. See People v. Walsh, 55 A.D.2d 923 (2d Dept. 1977). Moreover, the appellate decisions -38- in Walsh give no indication that the defendant was armed for any length of time before he stabbed the victim during an “incident” in a bar. 44 N.Y.2d at 635; 55 A.D.2d at 923. Thus, like Sturkey and Perez the case appears to involve the nearly simultaneous acts of taking possession of a weapon and the commission of an additional crime. The common thread between Sturkey, Walsh, and Perez is that there was no significant distinction between the crimes in time, place, victim, or purpose. In other words, in none of the three cases had the act of possession been completed when the additional crime occurred. That situation stands in stark contrast to the one here, where the evidence showed that defendant possessed his weapon before Lewis even arrived at the scene. For this reason, defendant’s attempt to equate the circumstances underlying those cases with the one here by suggesting that defendant possessed the firearm only “in the instant before he used it” (DB: 55) is simply incorrect. Likewise, defendant’s claim that allowing consecutive sentences in this case would be an “overly-technical” solution to a “line-drawing problem” (DB: 55) is unfounded. Although certainly there are scenarios where the possession of a weapon and another crime may be committed by a single act, this case, quite simply, is not one of them. Changing tacks, defendant contends that “this Court has long said that weapon possession charges should not run consecutively to other offenses involving the firearm” regardless of whether the possession crime was completed before the ensuing crime with the weapon (DB: 58). But that simply is not true. In fact, as -39- explained above, this Court has made clear that a sentence for a weapon possession conviction may run consecutively to sentences for other offenses involving the firearm so long as the possession and the additional crimes arose out of separate and distinct acts – that is, so long as the possession crime was complete before the defendant committed other crimes with the weapon. See Wright, 19 N.Y.3d at 364; Salcedo, 92 N.Y.2d at 1022 In addition to his legal and factual arguments, defendant also contends that “punish[ing]” him for possession of a firearm separately from his punishment for the attempted murder and assault of Lewis would “serve[ ] little purpose” and would not “further the legislative policies behind weapons possessions offenses as attempts to prophylactically intercept the possession and use of weapons in an inordinately armed society” (DB: 58) (internal quotation omitted). In other words, defendant argues that because he actually committed assault and attempted murder with the gun, he should not serve any additional prison time for his prior illegal possession of that gun. But that argument flies in the face of both logic and public policy. Indeed, with regard to simple weapon possession, on the one hand, and attempted murder and assault, on the other hand, it makes perfect sense that such crimes would be subject to consecutive sentencing. When someone arms himself in a public place, he poses a pronounced threat to anyone he comes across. See Perez, 45 N.Y.2d at 210 (“Because of the serious danger to the public posed by individuals who possess weapons, we believe that, as a matter of policy, the Legislature could not have -40- intended that a weapons possession charge . . . merge with the greater crime of robbery”). In other words, the danger that public gun possession generates is not confined only to one particular use of the gun. Accordingly, it is perfectly just to sanction that harm to the public at large, separately from a defendant’s use of the weapon against a specific victim. Moreover, in 2006, the Legislature evinced an increasing concern for the risks to the public that gun possession posed, when it elevated the crime of possession of a loaded weapon outside the defendant’s home or place of business from a class D felony to a class C felony. See L.2006, ch. 742, reprinted in 2006 McKinney’s Session Laws of NY, at 1443-44. Thus, in stark contrast to cases where a defendant’s gun possession is coextensive with a shooting, in which case the risk he poses to the public is no greater than the risk he poses by the shooting alone, when defendant concealed a loaded gun on himself on the morning of September 28th, 2008, before Lewis even arrived on the scene, defendant posed a separate threat to additional victims. The fact that he later used the gun to commit an additional crime does not erase the harm to society caused by his weapon possession. Equally meritless is defendant’s argument that “simple possession is essentially the same crime” as possession with the intent to use it unlawfully against another and, therefore, allowing a consecutive sentence here would allow prosecutors to engage in “manipulation” or “gamesmanship” by “charging identical conduct with a different subsection of the same statute” (DB: 59). First, simple possession is, quite simply, not -41- the same crime as possession with unlawful intent. Although in certain cases – like this one – a defendant’s conduct might meet the elements of both crimes, in other cases it may not, such as when a defendant possesses a gun but never evinces an intent to use it unlawfully or when a defendant possesses a gun inside his home or business. Moreover, it is not “gamesmanship” or “manipulation” for the People to charge a defendant with all of the crimes that he committed, whether or not consecutive sentences would be authorized. See generally People v. Di Falco, 44 N.Y.2d 482, 486-87 (1978) (the People have “broad discretion in determining when and in what manner to prosecute” defendants). And, ultimately, it is a court, not the People, who decides whether consecutive sentences should be imposed. Day, 73 N.Y.2d at 212 (“factual or evidentiary interdependence of offenses is a discretionary feature which a sentencing court may, and indeed should, weigh in determining whether to forebear the legal and authorized consecutive sentence in favor of a concurrent one.”). Furthermore, it is important to note that in this case, although the trial court imposed the sentence for possessing a weapon with the intent to use it unlawfully concurrently to the assault and attempted murder sentences, it could have imposed both weapon possession sentences to run consecutively. As explained above, Lewis’s testimony demonstrated that he unexpectedly arrived at the scene of the crime, where defendant was already standing in possession of the loaded gun. From defendant’s -42- possession alone the jury could have inferred that defendant harbored an unlawful intent before he ever came into contact with Lewis. See Penal Law § 265.15(4). In any event, whatever defendant’s impetus for possessing a gun on September 8th, 2008, it was not related to his intent to shoot Lewis, whom he could not have known he would see that morning. Thus, defendant’s possession of the gun with the intent to use it unlawfully was an act separate from his use of the weapon and could have supported consecutive sentences. Finally, defendant contends that the “consequences of the prosecutorial gamesmanship here” are particularly “dramatic” because the simple possession conviction “added an extra twenty years” to defendant’s term of imprisonment (DB: 60). But of course, it was defendant’s violent criminal history, resulting in his status as a persistent violent felony offender, that so dramatically increased his overall sentence. For defendant to now use the consequence of his own violent criminal history to invoke the court’s sympathy is unpersuasive to say the least. * * * In sum, the trial court legally imposed consecutive sentences for defendant’s convictions of attempted murder and assault, on the one hand, and simple weapon possession, on the other. -43- POINT II THE HEARING COURT PROPERLY DENIED DEFENDANT’S MOTION TO SUPPRESS THE GUN RECOVERED FROM RICKY KELLY’S APARTMENT (Answering Defendant’s Brief, Point I). On October 6th, 2008, the police tracked defendant to Ricky Kelly’s apartment and entered the apartment pursuant to a valid arrest warrant. After apprehending defendant and Kelly, two ESU officers conducted a brief security sweep of the apartment for safety reasons. After tilting the living room sofas against the wall to check for anyone who might be hiding underneath or behind them, the officers observed in plain view the Beretta nine-caliber semi-automatic pistol defendant had used to shoot Leonard Lewis on September 25th. Defendant now claims that the hearing court erred in denying his motion to suppress the gun (DB: 24). In making that claim, defendant challenges the findings of the hearing court and Appellate Division that he lacked standing to contest the protective sweep of the apartment and that the protective sweep was lawful. But both of those findings present a mixed question of law and fact. And, because the hearing evidence supports the rulings below, there is no basis for this Court to disturb the lower courts’ determinations. -44- A. In criminal cases, this Court has jurisdiction to review only questions of law. N.Y. Const. Art. VI § 3(a); see People v. Albro, 52 N.Y.2d 619, 624 (1981); CPL 470.35. Thus, Fourth Amendment and related state constitutional issues that involve questions of fact or mixed questions of law and fact are generally beyond the review powers of this Court. See, e.g., People v. Francois, 14 N.Y.3d 732, 733 (2010); People v. Wheeler, 2 N.Y.3d 370, 373 (2004); People v. Sierra, 83 N.Y.2d 928, 929 (1994). When a mixed question is at issue, this Court is precluded from reversing the Appellate Division’s determination unless the determination either has no support in the record, see, e.g., People v. Bradford, 15 N.Y.3d 329, 333 (2010); People v. Paulman, 5 N.Y.3d 122, 129 (2005); Sierra, 83 N.Y.2d at 929-30; People v. Wilkerson, 64 N.Y.2d at 750-51 (1984), or hinges on the application of the wrong legal standard. See People v. Giles, 73 N.Y.2d 666, 670-71 (1989); People v. Borges, 69 N.Y.2d 1031, 1033 (1987). This Court has expressly held that the determination of whether a defendant had standing to contest a search involves a mixed question of law and fact. People v. Jose, 94 N.Y.2d 844 (1999); People v. Ortiz, 83 N.Y.2d 840, 843 (1994). Likewise, this Court has held that whether a protective sweep is justified under particular circumstances involves a mixed question of law and fact. People v. Boyland, 20 N.Y.3d 879, 879 (2012). Here, defendant’s objections do not involve the appropriate legal standard. Thus, the only question before this Court is whether there is any -45- record support for the lower court’s ruling. In fact, the hearing proof amply supports the lower courts’ determinations in regard to both standing and the legality of the protective sweep. B. It is well settled that a person has standing to contest a search or seizure only if that person has “a legitimate expectation of privacy” in the place searched or the property seized. People v. Ramirez-Portoreal, 88 N.Y.2d 99, 108 (1996); People v. Wesley, 73 N.Y.2d 351, 356-57 (1989); see also Rakas v. Illinois, 439 U.S. 128, 143 (1978); Rawlings v. Kentucky, 448 U.S. 98, 104-05 (1980). A legitimate expectation of privacy involves two elements: a subjective component, whether the defendant did in fact exhibit an expectation of privacy in the place or item involved; and an objective component, whether “society generally” recognizes that expectation as reasonable in light of all the surrounding circumstances. Ramirez-Portoreal, 88 N.Y.2d at 108; People v. Rodriguez, 69 N.Y.2d 159, 162 (1987). Moreover, during suppression proceedings, it is the defendant’s burden to establish a reasonable expectation of privacy in the searched location. Ramirez-Portoreal, 88 N.Y.2d at 108; Wesley, 73 N.Y.2d at 358-60; People v. Rodriguez, 69 N.Y.2d at 163; People v. Ponder, 54 N.Y.2d 160 (1981). To determine if a defendant has exhibited a privacy interest in the area searched, the court must consider all the surrounding circumstances. Relevant factors -46- include whether the defendant took precautions to maintain privacy, the manner in which he used the premises, and whether he had the right to exclude other persons from the premises. See Ramirez-Portoreal, 88 N.Y.2d at 109; Rodriguez, 69 N.Y.2d at 162-63. More particularly, courts may consider“[t]he number of times a person stays in a particular place, the length and nature of the stay, [and] the indicia of connectedness and privacy, like change of clothes or sharing expenses or household burdens.” Rodriguez, 69 N.Y.2d at 163. In that regard, a mere invitee or visitor to a home does not have standing to contest the search of that home. Ortiz, 83 N.Y.2d at 840. In Rodriguez, this Court stated that any of above factors may, alone or in combination with other factors, establish a reasonable expectation of privacy; but “[t]he burden of demonstrating the factors and their reasonableness to support the legal conclusion is on the defendant.” 69 N.Y.2d at 162-63 (citations omitted). Of course, even in situations where a person legitimately on the premises would have a right to challenge the legality of a search, a person “wrongful[ly]” on the premises does not have standing to move to suppress evidence obtained as a result of searching that location. Jones v. United States, 362 U.S. 257 (1960),overruled on other grounds in United States v. Salvucci 448 U.S. 83 (1980);13 see also Rakas, 439 US at 13 Although the “automatic standing rule” of Jones, which stated that defendants charged with crimes of possession may claim the benefits of the exclusionary rule even if their own Fourth Amendment rights had not been violated, was later overruled, the unreasonableness of a subjective expectation of privacy based upon wrongful presence has not been questioned. -47- 141, n. 9 (wrongful presence at the scene of a search prohibits a defendant from objecting to the legality of the search). To put it differently, even if a person has a subjective expectation of privacy in a location, society does “not recognize as reasonable the privacy rights of a defendant whose presence at the scene of [a] search was wrongful.” United States v Roy, 734 F.2d 108, 110 (2d Cir. 1984)(escaped felon did not have legitimate expectation of privacy in passenger compartment or trunk of his automobile); see also People v. Hernandez, 218 A.D.2d 167, 168 (2d Dept. 1996) (escaped prisoner had no reasonable expectation of privacy in his brother’s apartment).14 Thus, a parolee whose release from prison was conditioned on his “abid[ing] by certain rules during the balance of the sentence” Samson v. California, 547 U.S. 843, 850 (2006), including a rule that he stay away from the very place in which he claims to have a privacy interest, quite simply does not have standing to contest the legality of a search of that place. See United States v. White, 622 14 Numerous other courts have considered the issue and come to the same conclusion. See, e.g., United States v. Dye, 2011 WL 1595255, at *5 (N.D. Ohio April 17, 2011) (“It seems incredible that the defendant could maintain that he had a reasonable expectation of privacy in the home of a person with whom he had been ordered by the court to have no contact”) (RA6); United States v. Brown, 484 F.Supp.2d 985, 993–94 (D.Minn.2007) (holding a defendant who was not permitted to be on the premises of the housing complex had no standing to challenge the search because his presence was “wrongful.”); United States v. Rambo, 789 F.2d 1289, 1296 (8th Cir.1986) (“Rambo cannot assert an expectation of being free from police intrusion upon his solitude and privacy in a place from which he has been justifiably expelled”); Commonwealth v. Morrison, 710 N.E.2d 584 (Mass. 1999)(“It is simply nonsense to say that society is prepared to recognize [the defendant’s] right to be where society by the processes of the law has ordered him not to be”). -48- F.Supp.2d 34, 43 n.8 (S.D.N.Y. 2008) (no legitimate expectation of privacy when parolee’s presence in the location violated conditions of his release). Here the evidence at the suppression hearing failed to establish that defendant had any reasonable expectation of privacy in Ricky Kelly’s apartment. First, officers found what appeared to be one man’s bedroom and one woman’s bedroom, with no boxes or luggage indicating that anyone had recently moved in (Simonetti: A85-86, 145). This was consistent with Kelly’s statements to the police that he lived in the apartment with his mother (Simonetti: A94-95). Indeed, following their apprehension, defendant and Kelly both told Detective Simonetti that defendant did not live in the apartment where the gun was found. Rather, both defendant and Kelly said that defendant had gone to “[his] boy’s” apartment at around 10:30 or 11:00 that morning to hang out (Simonetti: A99, 151). Defendant further told Simonetti that, although he had called his parole officer 12 days before his arrest and told her that he was moving to Kelly’s apartment, he actually had not been there in the days prior to his arrest (Simonetti: H43-44). Similarly, Kelly had no idea that defendant had listed the address with the division of parole (Kelly: 35-38, 92). Kelly added that, although defendant had stayed at his apartment overnight prior to 2002, he had never done so for more than one night and that defendant had not stayed at the apartment since defendant’s release from prison earlier in 2008 (Simonetti: H49). All told, the hearing evidence did not indicate that defendant was anything more than a mere “casual visitor” with “relatively tenuous ties -49- to the apartment wherein he was arrested” Ortiz, 83 N.Y.2d at 842. Accordingly, defendant demonstrated no personal privacy interest in Kelly’s apartment. Id. Crucially, even if defendant had had some subjective expectation of privacy in Kelly’s apartment, that expectation would not have been legitimate or reasonable because he was there unlawfully. Jones, 362 U.S. at 257; Rakas, 439 U.S.at 141, n 9. Defendant was released from custody on parole before the completion of his sentence on the condition that he “abide[ ] by certain rules during the balance of the sentence.” Sampson, 547 U.S. at 850. One of the legal conditions placed on defendant was that he “not associate in any way or communicate by any means” with Ricky Kelly, his co- defendant in a prior armed robbery, without the permission of his parole officer (Smith: A209). To be sure, on September 24th, when defendant told Parole Officer Middleton that he had moved into Kelly’s apartment in order to escape “activity” at his prior address, she had approved the move. However, she gave defendant permission to be there only temporarily. And, in fact, on September 30th, nearly a week prior to defendant’s arrest, Middleton expressly revoked that permission (Smith: A213-14, 217). Specifically, Middleton told defendant that not only could he not live at the apartment, but that he could not have “any contact” at all with Kelly, and reminded him that doing so was a violation of his conditions of release (Smith: A214). On October 1st, Middleton told defendant again that he could not live in Kelly’s apartment (Smith: A215). Of course, Middleton’s instructions were a valid exercise of -50- her authority. After all, a state “has an ‘overwhelming interest’ in supervising parolees because ‘parolees . . . are more likely to commit future criminal offenses.’” Sampson, 547 U.S. at 853 (citing Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 365 (1998), [explaining that the interest in combating recidivism “is the very premise behind the system of close parole supervision”]). In short, not only was defendant prohibited by law from living in Kelly’s apartment, he was prohibited from being there at all. Thus, any expectation of privacy defendant might have had in the apartment was simply not reasonable. Despite all this, defendant inexplicably argues that he had “a reasonable expectation of privacy in [Kelly’s] apartment because he was living there” (DB: 26). But as explained above and adduced at the suppression hearing, both defendant and Kelly told Detective Simonetti that defendant did not live there, but instead arrived only that morning to “hang out.” Defendant attempts to dismiss Kelly’s statement as self-serving, and then claims that his own statements were “consistent with him having moved into the apartment the same day as the arrest” (DB: 26). However, Kelly’s statements were entirely consistent with the other hearing evidence showing that defendant did not live in the apartment. And, defendant’s characterization of his own statements are utterly incompatible with the fact that he actually told police that he did not live in the apartment and that he went his “boy’s” apartment to “h[a]ng out” (Simonetti: A100). That language expressly contradicts any claim that he had moved to the apartment on the day of his arrest (or 12 days earlier, as he had told his -51- parole officer). Moreover, the fact that the parole warrant listed Kelly’s address as defendant’s own is inconsequential (DB: 26). It is undisputed that the last address that defendant gave his parole officer was that of Ricky Kelly. Although the hearing evidence showed that this information was false, it is no surprise that, when filling out the warrant, the parole officer noted that address. Finally with regard to the factual record, that the People made a passing reference in their trial summation to “the gun found in the defendant’s apartment” is irrelevant (DB: 26) (citing A946, A958). Of course, where defendant never moved to reopen the suppression hearing, his reliance on the trial record is completely inappropriate. Giles, 73 N.Y.2d at 670. In this instance, defendant’s reliance is also utterly unpersuasive. The People’s mistaken reference to Kelly’s apartment as defendant’s does absolutely nothing to change the hearing evidence, including: that, by the time of defendant’s arrest, his parole officer had forbidden him to live in the apartment or, in fact, have any contact with Kelly; that there was no indication that defendant had moved into the apartment; and that defendant and Kelly had both told police that he did not live there. Next, defendant argues that he had a reasonable expectation of privacy in the apartment because he was a “social guest” of Ricky Kelly (DB: 26). According to defendant, in Minnesota v. Carter, 525 U.S. 83 (1998), five Justices of the United States Supreme Court concluded that “almost all social guests have a legitimate expectation of privacy, and hence protection against unreasonable searches, in their -52- host’s home.” Id. at 99 (Kennedy, J., concurring) (See DB: 27). But, defendant never argued to the hearing court that Carter conferred on him standing to challenge the search of Kelly’s apartment, leaving his current contention unpreserved. Defendant’s silence is unsurprising, since Carter does not remotely dictate the outcome he suggests. To begin, in Carter, a majority of the Supreme Court held that a person present at a home for the purpose of packaging illegal drugs lacked standing to challenge a search of the apartment. 525 U.S. at 90. In doing so, the majority observed that the Court’s precedent established that “an overnight guest in a home may claim the protection of the Fourth Amendment, but one who is merely present with the consent of the householder may not.” Id. (emphasis added); see Minnesota v. Olson, 495 U.S. 91, 98-99 (1990). Accordingly, it is to no avail to parse the concurring opinions and dissent to insist that a hypothetical “‘majority of justices would confer social standing on social guests who do not necessarily remain overnight’” (DB: 28, quoting Kamins, New York Search and Seizure § 1.03[1] [2012]), when the actual majority did not. Indeed, such speculation is particularly unpersuasive where four of the justices who decided Carter have retired from the Court, including two of the three dissenters.15 15 Moreover, while Justice Scalia, in a concurrence joined by Justice Thomas, stated that the dissent “may be correct” that persons invited into a home to “engage in a common business . . . . ought to be protected against government searches of the rooms that they (Continued…) -53- In any event, even if the Supreme Court had adopted Justice Kennedy’s concurring opinion that “almost all” casual guests have standing to contest a search conducted at the home they are visiting, Carter, 525 U.S. at 99, defendant would be excluded from that category. As explained above, even in situations where a person legitimately on the premises would have a right to challenge the legality of a search, a person “wrongful[ly]” on the premises does not have that same standing to move to suppress evidence obtained as a result of searching that location. Jones, 362 U.S. 257; Rakas 439 U.S.at 141, n. 9. Defendant’s release from prison was expressly conditioned on his promise to not associate with Ricky Kelly. His parole officer told him that not only was he not allowed to live in Kelly’s apartment, he was not allowed to have any contact with Kelly at all. Thus, defendant could have had no reasonable expectation of privacy in Kelly’s apartment and, in turn, lacked standing to challenge the propriety of the search of that apartment and the seizure of the gun. C. Even if defendant had standing to challenge the seizure of the gun, the hearing court’s denial of his motion to suppress the gun was proper because the ESU officers were entirely justified in conducting a brief security sweep of the apartment to ensure ______________________ (…Continued) occupy,” he continued that he was “sure that the answer is not remotely contained in the Constitution[.]” Carter 525 U.S. at 98 (emphasis in the original). -54- their safety. It is undisputed that the police possessed a valid warrant for defendant’s arrest and lawfully entered the apartment. And, while a search warrant or probable cause is generally required to search an individual’s home or office, it is well settled that, incident to an arrest, a police officer may make a “protective sweep” or “security check” of the premises, consisting of a “cursory visual inspection of those places in which a person might be hiding,” when the officers “‘possess[] a reasonable belief based on ‘specific and articulable facts’” that the area to be swept “harbor[s] an individual posing a danger to the officer or others.” Maryland v. Buie, 494 U.S. 325, 327, 334 (1990). Of course, in doing so, officers may, as a precautionary matter, look under beds and other large pieces of furniture, in closets, and other spaces from which an attack could be launched. See Maryland v. Buie, 494 U.S. at 334; see also, e.g., People v. Andino, 256 A.D.2d 153, 154 (1st Dept. 1998) (“limited and swift security check” proper “to determine if there were any individuals present who might destroy evidence or pose a threat to the officers”); People v. Sanchez, 247 A.D.2d 254 (1st Dept. 1998) (“limited security sweep” proper to locate weapon and people “reasonably believed to be in the apartment, who might have destroyed evidence or used the weapon to retaliate against the police, and to secure the officers’ safety”); People v. Neutzel, 246 A.D.2d 477, 478 (1st Dept. 1998) (“a limited protective sweep, which was narrowly confined to a cursory visual inspection of those places in which a person might be hiding” was proper). -55- As the Supreme Court recognized in Maryland v. Buie, “[t]he risk of danger in the context of an arrest in the home is as great as, if not greater than, it is in an on- the-street or roadside investigatory encounter” since an “ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings.” 494 U.S. at 333. And, since in determining the reasonableness of police conduct one must consider “the realities of a world in which attacks on the police are almost commonplace,” here, a protective sweep of the apartment was certainly appropriate. See People v. Green, 103 A.D.2d 362, 366 (2nd Dept. 1984). In that regard, the ESU officers present at the scene quickly apprehended the two men they found in the living room and moved them to the hallway. Searching for a suspect in an extremely violent crime, in violation of his parole, and potentially in the company of an accomplice from a prior armed robbery, the ESU officers prudently and quickly completed their security sweep of the apartment, while other officers took custody of the apprehended men. This was reasonable in all respects and, notably, courts have frequently taken into consideration a suspect’s proven dangerousness in assessing the reasonableness of a security sweep. See, e.g., United States v. Williams, 577 F.3d 878 (8th Cir.2009) (upon arrest of parole violator, officer had “reasonable suspicion that an unknown individual in the home could pose a danger to them,” because defendant had “opportunity to alert a possible accomplice,” and he had a “prior conviction for unlawful possession of a firearm”); United States v. Burrows, 48 F.3d 1011 (7th Cir.1995) (protective sweep lawful where two persons to -56- be arrested “were suspected of committing a violent crime involving a firearm,” and one of them “had a history of violent criminal activity”); Commonwealth v. Matos, 935 N.E.2d 1285, 1288 (Mass. App. Ct. 2010) (that the defendant had “prior arrests related to firearms offenses” enough to justify protective sweep) (citing Commonwealth v. DeJesus, 872 N.E.2d 1178, 1181 (Mass. App. Ct. 2007) (a “violent criminal record” can constitute the requisite “articulable facts justifying a protective sweep”); see also, 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 6.4(c), at 377 (5th ed. 2012) (“where the arresting officers are not possessed of concrete information tending to show that other persons are presently in the premises entered, the dominant consideration is the seriousness of the criminal conduct for which the arrest was made, considering all the known circumstances”). Thus, the ESU officers were entirely justified in performing a cursory sweep of the apartment in order to check the areas in which a person might be hiding, including under or behind the living room sofa. Such a safety procedure was perfectly consistent with the type of “protective sweep” approved by the Supreme Court in Maryland v. Buie, 494 U.S. at 325. Notably, the sweep was limited in scope and far less than a full-blown search of the apartment. In that regard, the ESU detectives spent only about a minute inside the apartment conducting a cursory visual inspection of only those places in which a person might be hiding. Unlike the procedure in a full-fledged search, the officers did not look in spaces which were clearly too small to conceal a person, open drawers, or look through the contents of closets. -57- Further, as defendant does not dispute, when the officers saw the gun in plain view during their security sweep, they were entitled to seize it. Specifically, law enforcement officers may properly seize an item in “plain view” without a warrant if: (i) they are lawfully in a position to observe the item; (ii) they have lawful access to the item itself when they seize it; and (iii) the incriminating character of the item is immediately apparent. See Horton v. California, 496 U.S. 128, 136-137 (1990). In short, the officers’ conduct was appropriate in all respects. Nonetheless, defendant argues that the ESU officers “acted here as if sweeps are automatically allowed after every arrest,” and that Detective John Cousins, who led the sweep, “admitted” during the suppression hearing that there was “no reason specific to [defendant’s] situation for the search save that it was standard procedure” (DB: 33). But defendant’s cavalier interpretation of the testimony is inaccurate. In fact, Cousins was never asked whether security sweeps were “standard procedure” after every arrest; he was asked whether they were standard procedure in “a situation such as this” (A193-94). And, as noted above, the situation in question involved facts about defendant and Kelly that gave the officers good reason to sweep the apartment for threats. The hearing court was entitled to consider that evidence when determining that the security sweep was justified. Defendant professes to fear that if his history of committing violent felonies with others and the fact that he was on parole and in violation of the conditions of his release from prison were enough to justify a protective sweep, such security checks -58- “would become automatic anytime someone with a prior felony conviction was arrested” (DB: 35). But of course that is not the case. Even defendant cannot contend that every defendant with a prior felony conviction is a parolee in violation of the conditions of his release, a suspect in an attempted murder, and in the home of an accomplice in a prior armed robbery, which police could access only by forcing the door. Defendant also claims that the protective sweep was illegal because it exceeded the bounds permissible for such a measure (DB: 36). Specifically, defendant submits that a third person could not have been hiding under the couch unless it was particularly “gargantuan” – so unusual that it would have “stuck out” in the officers’ memories (DB: 37). That is ridiculous, since the “legs” of the upturned sofa that the officers saw “exposed” might simply have been long enough that a person might have been able to lie flat under the sofa. More importantly, the officers testified that they were looking for someone who might be hiding not just under but also behind the couch (Cousins: H: A194, 200). See United States v. Paopao, 469 F.3d 760, 767 (9th Cir. 2006) (scope of protective sweep lawful because limited to spaces where persons could hide, including behind a sofa). Thus, the scope of the search was entirely proper. Lastly, defendant argues that he was “prejudiced by the belated disclosure” that, after he had been taken to the precinct and the security sweep was completed, an officer from the ECU arrived at Kelly’s apartment and took photographs of the couch -59- under which the gun was found, but that those photographs were inadvertently overexposed and destroyed (DB: 38). According to defendant, because the “size and dimensions of the couch” were relevant to whether the security sweep was justified, he should have been allowed to question the ECU officer about the pictures as well as “the appearance and location of the couch and gun”(DB: 38-39, 41). Defendant is wrong. At issue was the reasonableness of the ESU officers’ conduct. And, as the hearing court observed, in a security sweep situation, the police have only a “moment” to “figure out how not to be killed.” They have no time to consider the exact length of the legs of a particular couch or what the gap between the couch and the floor might be. In other words, they “are not lollygagging around, measuring the depth of the bed, the dimensions of a closet.” They immediately need to “find out if there’s somebody under the couch” or elsewhere in the apartment by “throwing open the closet door, flipping the bed, flipping the couch” (A285-86). See United States v. Green, 560 F.3d 853, 857 (8th Cir. 2009). Indeed, in light of the urgent nature of the protective sweep, the officers’ decision to flip the couches would have been entirely reasonable, even if it turned out after the fact that those particular pieces of furniture could not have fit a person underneath or behind them. See, e.g., Green, 560 F.3d at 857 (guns found on top of bedroom dresser during a protective sweep held admissible in light of officer’s reasonable, although ultimately mistaken, belief that a person could be hiding on top of a six foot-high dresser; the officer’s belief was reasonable in light -60- of fact that officers must “act quickly and decisively” to “verify that potential hiding spaces are empty”). Thus, the potential testimony of the officer who took the pictures regarding the appearance of the couch was of marginal relevance to the issue of the situation unfolding before the ESU officers. Even if the court had drawn the adverse inference defendant now appears to urge – that is, that a person could not have fit underneath the sofa in question – the details provided by Detective Cousins compellingly established that the scope of the officers’ protective sweep was justified because, as defendant does not dispute, a person could have hid behind the sofa and because, in any event, officers are justified in quickly looking under and behind large pieces of furniture, such as sofas, dressers, or beds, to ensure their safety without wasting crucial time measuring or considering the exact dimensions of the furniture in question. * * * In sum, the hearing record fully supports the lower courts’ determinations that defendant lacked standing to challenge the security sweep of Kelly’s apartment, which in any event, was completely proper. CONCLUSION The order of the Appellate Division should be affirmed. -61- Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County BY: ELLEN STANFIELD FRIEDMAN Assistant District Attorney CHRISTOPHER P. MARINELLI ELLEN STANFIELD FRIEDMAN Assistant District Attorneys Of Counsel April 11, 2013 PRINTING SPECIFICATIONS STATEMENT The word count for this brief is 15753, excluding the Table of Contents and Table of Authorities. The word processing system used to prepare this brief and to calculate the word count was Microsoft Word 2010. The brief is printed in Garamond, a serifed, proportionally spaced typeface. The type size is 14 points in the text and headings, and 13 points in the footnotes.