Opinion
262 KA 18-01624
06-30-2023
The PEOPLE of the State of New York, Respondent, v. Stephan HALL, Defendant-Appellant.
JULIE A. CIANCA, PUBLIC DEFENDER, ROCHESTER (GUY A. TALIA OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
JULIE A. CIANCA, PUBLIC DEFENDER, ROCHESTER (GUY A. TALIA OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., LINDLEY, CURRAN, OGDEN, AND GREENWOOD, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his guilty plea of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ). Contrary to defendant's contention, we conclude that Supreme Court properly refused to suppress tangible evidence. The court correctly determined that defendant failed to establish standing to challenge the legality of the search that resulted in the recovery of the subject handgun (see generally People v. Smith , 155 A.D.3d 1674, 1675, 64 N.Y.S.3d 446 [4th Dept. 2017], lv denied 30 N.Y.3d 1120, 77 N.Y.S.3d 345, 101 N.E.3d 986 [2018] ; People v. Gonzalez , 45 A.D.3d 696, 696, 845 N.Y.S.2d 817 [2d Dept. 2007], lv denied 10 N.Y.3d 811, 857 N.Y.S.2d 44, 886 N.E.2d 809 [2008] ). The evidence at the suppression hearing established that defendant had placed the handgun inside of a jacket, which he then left on a shelf in a convenience store in an area that was open to the public. Although defendant occasionally assisted the store owner, defendant was not an employee of the store and was merely a "casual visitor having relatively tenuous ties" to the premises ( Smith , 155 A.D.3d at 1675, 64 N.Y.S.3d 446 [internal quotation marks omitted]; see Gonzalez , 45 A.D.3d at 696, 845 N.Y.S.2d 817 ; People v. Aquart , 86 A.D.2d 616, 616, 446 N.Y.S.2d 95 [2d Dept. 1982] ). Defendant failed to demonstrate that he had a legitimate expectation of privacy in the place where the jacket and handgun were found (see People v. Fall , 205 A.D.3d 482, 483, 168 N.Y.S.3d 65 [1st Dept. 2022], lv denied 38 N.Y.3d 1133, 172 N.Y.S.3d 856, 193 N.E.3d 521 [2022] ; People v. Johnson , 209 A.D.2d 721, 721, 619 N.Y.S.2d 154 [2d Dept. 1994], lv denied 84 N.Y.2d 1033, 623 N.Y.S.2d 189, 647 N.E.2d 461 [1995] ; see generally People v. Sweat , 159 A.D.3d 1423, 1423, 72 N.Y.S.3d 684 [4th Dept. 2018] ).
Defendant further contends that Penal Law § 265.03 is unconstitutional in light of the United States Supreme Court's decision in New York State Rifle & Pistol Assn., Inc. v. Bruen , ––– U.S. ––––, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022). Inasmuch as defendant failed to raise a constitutional challenge before the trial court, any such challenge is not preserved for our review (see People v. Jacque-Crews , 213 A.D.3d 1335, 1336, 183 N.Y.S.3d 234 [4th Dept. 2023], lv denied 39 N.Y.3d 1111, 186 N.Y.S.3d 841, 208 N.E.3d 69 [2023] ; People v. Reese , 206 A.D.3d 1461, 1462-1463, 170 N.Y.S.3d 375 [3d Dept. 2022] ; see generally People v. Reinard , 134 A.D.3d 1407, 1409, 22 N.Y.S.3d 270 [4th Dept. 2015], lv denied 27 N.Y.3d 1074, 38 N.Y.S.3d 844, 60 N.E.3d 1210 [2016], cert denied 580 U.S. 969, 137 S.Ct. 392, 196 L.Ed.2d 308 [2016] ). Contrary to defendant's contention, his "challenge to the constitutionality of a statute must be preserved" ( People v. Baumann & Sons Buses, Inc. , 6 N.Y.3d 404, 408, 813 N.Y.S.2d 27, 846 N.E.2d 457 [2006], rearg denied 7 N.Y.3d 742, 819 N.Y.S.2d 876, 853 N.E.2d 247 [2006] ).