Opinion
November 8, 1993
Appeal from the County Court, Dutchess County (King, J.).
Ordered that the judgment is affirmed.
We agree with the hearing court that the defendant had no standing to seek suppression of the narcotics discovered during a search of the bag which he was carrying. The hearing testimony demonstrated that the defendant repeatedly insisted that the bag did not belong to him, that he did not know what it contained, and that he was merely transporting its contents from New York City to Poughkeepsie for someone else. Moreover, the bag was not sealed in any manner, nor did the defendant seek to exclude others from access to it. Under these circumstances, the defendant failed to establish a personal legitimate expectation of privacy in the property (see, People v Whitfield, 81 N.Y.2d 904; People v Hernandez, 162 A.D.2d 417; People v Gatling, 133 A.D.2d 465; People v Barronette, 123 A.D.2d 707; United States v Torres, 949 F.2d 606).
In any event, were we to reach the defendant's contentions regarding the propriety of the police conduct and the validity of the defendant's consent to search the bag, we would find them to be without merit. The brief inquiry conducted by the police investigator was supported by an adequate factual predicate (see, People v Hollman, 79 N.Y.2d 181) and there was ample evidence from which the hearing court could properly conclude that the defendant was not in custody at the time he voluntarily accompanied the investigator off the train (see generally, People v Hicks, 68 N.Y.2d 234; People v Yukl, 25 N.Y.2d 585, cert denied 400 U.S. 851). Similarly, we discern no error in the hearing court's determination that, under the totality of the circumstances presented (see, People v Gonzalez, 39 N.Y.2d 122), the defendant's consent to the search was voluntary (see, People v Meredith, 49 N.Y.2d 1038), even if it was part of a calculated strategy by the defendant to disassociate himself from the narcotics (see, People v Maldonado, 184 A.D.2d 531).
The defendant's claim that the hearing court erred in failing to impose a sanction for a purported Rosario violation is not preserved for appellate review, inasmuch as he did not raise or pursue any Rosario claim at the hearing nor did he request any type of sanction (see, e.g., People v Rogelio, 79 N.Y.2d 843; People v Rivera, 78 N.Y.2d 901; People v Sheppard, 185 A.D.2d 904; People v West, 184 A.D.2d 743). In any event, the contention is patently without merit. The defendant failed to establish on the record that the alleged Rosario material actually existed, and the hearing testimony in fact demonstrated that neither prosecution witness prepared any notes with respect to the case (see, People v Dennis, 176 A.D.2d 956; see also, CPL 240.44; People v Love, 187 A.D.2d 1030; People v Alejandro, 175 A.D.2d 873). Thompson, J.P., Sullivan, Ritter and Joy, JJ., concur.