Opinion
2006-1394 W CR.
Decided April 21, 2008.
Appeal from a judgment of the City Court of Yonkers, Westchester County (Thomas R. Daly, J.), rendered July 27, 2006. The judgment convicted defendant, upon a jury verdict, of criminal possession of a controlled substance in the seventh degree.
Judgment of conviction affirmed.
PRESENT: TANENBAUM, J.P., MOLIA and SCHEINKMAN, JJ.
Two police officers entered the unlocked and well-illuminated vestibule to defendant's apartment building and observed defendant, from a distance of five to six feet, in the act of handing to another person a clear plastic "twist" containing what the officers recognized to be crack cocaine. As the police arrested the other person in the vestibule and recovered the twist from his hand, defendant escaped into his ground-floor apartment and, evidently, fled the apartment through a rear window. Following defendant's arrest on a warrant, the People charged defendant with criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03), and defendant moved orally to suppress, alleging the aforementioned facts. The court denied the motion without a hearing (CPL 710.60) and denied defendant's mid-trial motion (CPL 710.40) to have the court reconsider the motion's summary denial and determine the motion on the basis of the relevant trial evidence theretofore presented, i.e., the testimony of the first of the two officers to enter the vestibule.
A motion to suppress physical evidence "must state the ground or grounds of the motion and must contain sworn allegations of fact . . . supporting such grounds" (CPL 710.60; see generally People v Burton, 6 NY3d 584). Suppression hearings "are not automatic or generally available for the asking by boilerplate allegations. Rather, . . . factual sufficiency should be determined with reference to the face of the pleadings, the context of the motion and defendant's access to information" ( People v Mendoza, 82 NY2d 415, 422). The mere fact of a search does not give rise to a hearing issue; the defendant must allege facts which, if true, establish defendant's standing to challenge the search and seizure ( People v Burton, 6 NY3d at 587; People v Wesley, 73 NY2d 351, 358-359). A defendant is entitled to a broad reading of the record in determining whether the factual threshold has been reached and may rely on, among other things, the People's proof, the accusatory instrument and "testimonial statements elicited by the prosecution" ( People v Burton, 6 NY3d at 588-589; e.g. People v Samuel , 42 AD3d 551 ).
We find that defendant failed to allege any facts which, if proved, would establish defendant's expectation of privacy in the vestibule of his apartment building or his standing to challenge the search and seizure of the evidence from the person from whom it was seized. "A legitimate expectation of privacy exists where defendant has manifested an expectation of privacy that society recognizes as reasonable" ( People v Ramirez-Portoreal, 88 NY2d 99, 108; see People v Rodriguez, 69 NY2d 159, 163). As a general rule, persons have no cognizable Fourth Amendment privacy interests in public places ( United States v Santana, 427 US 38, 42; cf. Penal Law § 240.00; People v Powell, 54 NY2d 524), and, for purposes of Fourth Amendment analysis, the courts routinely include hallways, lobbies and vestibules as places where a person has no legitimate, socially recognized expectation of privacy ( see e.g. People v Bilsky, 261 AD2d 174, affd 95 NY2d 172; People v Wallace, 250 AD2d 398; People v Coppin, 202 AD2d 279; People v Riley, 202 AD2d 336) without regard to the manner in which the police came to be present in the area in question ( e.g. People v Bartley, 219 AD2d 566).
Defendant also did not allege any facts which, if true, would give him standing to challenge the seizure of the cocaine from the other person. Because Fourth Amendment privacy rights "are personal and may not be vicariously asserted" ( People v Rodriguez, 69 NY2d at 163; see also United States v Salvucci, 448 US 83, 85; People v Wesley, 73 NY2d at 355; People v Ponder, 54 NY2d 160, 165; People v Dawson, 269 AD2d 817; People v Cedeno, 193 AD2d 540), defendant has no personal interest in the violation of a privacy expectation, however legitimate, alleged to have been suffered by another unless "the criminal possessory charge is rooted solely in a statutory presumption attributing possession to a defendant" ( People v Tejada, 81 NY2d 861, 863). Here, the People relied on two theories, simple possession, that is, that defendant "gave" a quantity of a controlled substance to another, the basis of that allegation being that the complaining officer saw defendant hand the twist to another, and constructive possession, which is not a "statutory presumption" within the contemplation of the automatic standing rule ( People v Wesley, 73 NY2d at 361; see also People v Tejada, 81 NY2d at 863). Thus, since defendant failed to invoke facts from any source which, if true, would establish a triable issue of whether his Fourth Amendment rights were violated, the court properly declined to hold a suppression hearing or, if it deemed the trial testimony to represent the factual basis upon which suppression was sought, to grant the motion.
Defendant also contends that a police witness's reference to the fact that he knew defendant as a drug dealer was so prejudicial as to compel reversal of the conviction. However, the statement was made in response to defense counsel's own questioning on issues that the defense had interjected on its own case, namely that the officer misidentified defendant as the person who handed the cocaine to the other and that defendant was not a seller of drugs. In any event, the defense, having failed to object to the answer, to move to strike the answer, or to request a curative instruction or a mistrial, failed to preserve the claim for appellate review (CPL 470.05).
In view of the foregoing, the judgment of conviction is affirmed.
Tanenbaum, J.P., Molia and Scheinkman, JJ., concur.