Opinion
February 2, 1995
Appeal from the Supreme Court, New York County (Frank Torres, J.).
We agree with the motion court that although defendant's telephone conversations were intercepted by an eavesdropping warrant, he has no derivative right to contest the propriety of a prior pen register order from which information was obtained which constituted a probable cause basis for the eavesdropping warrant (see, People v. Varacalli, 154 Misc.2d 805, 808). Defendant was not the target of any of the pen registers or a party to any conversations recorded by same, and therefore, he has no standing as an "aggrieved party" under CPLR 4506 to controvert their issuance (supra, at 808).
Nor does defendant have standing to challenge the lawfulness of the search warrant issued for an apartment in which he did not reside, and in which he otherwise had no legitimate expectation of privacy. Defendant's status as a visitor in the apartment on the day the search warrant was executed is insufficient to establish a proprietary interest in the premises, notwithstanding the fact that he had "various items" of his personal property, including his golf clubs, in the apartment (see, People v Rodriquez, 69 N.Y.2d 159). Defendant's assertion, made for the first time on appeal, that at the time of the execution of the search warrant he was a "frequent visitor" and an "occasional overnight guest" in the apartment and that he kept a change of clothes there, is not supported by the record.
Concur — Sullivan, J.P., Ellerin, Ross, Asch and Williams, JJ.