Opinion
11-17-2017
The PEOPLE of the State of New York, Respondent, v. Stanley SMITH, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Deborah K. Jessey of Counsel), for Defendant–Appellant. John J. Flynn, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Deborah K. Jessey of Counsel), for Defendant–Appellant.John J. Flynn, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, DeJOSEPH, AND WINSLOW, JJ.
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] ). Supreme Court properly denied without a hearing that part of defendant's omnibus motion seeking suppression of physical evidence seized during a search of the subject residence. Defendant's motion did not contain sworn allegations of fact supporting the conclusion that he has standing to contest the legality of the search of the residence (see CPL 710.60[3][b] ; see generally People v. Brunson, 226 A.D.2d 1093, 1093–1094, 641 N.Y.S.2d 935 [4th Dept.1996], lv. dismissed 88 N.Y.2d 981, 649 N.Y.S.2d 387, 672 N.E.2d 613 [1996] ). In support of his motion, defendant submitted his written statement to the police in which he stated that he did not know the resident of the premises inasmuch as he had just met her on the night in question, and that he was at the premises for the purpose of socializing with her and other guests. Based on that statement, defendant was "no more than a casual visitor having ‘relatively tenuous ties' to the [premises]" and he thus lacks standing to contest the legality of the search ( People v. Pope, 113 A.D.3d 1121, 1122, 977 N.Y.S.2d 866 [4th Dept.2014], lv. denied 23 N.Y.3d 1041, 993 N.Y.S.2d 255, 17 N.E.3d 510 [2014], quoting People v. Ortiz, 83 N.Y.2d 840, 842, 611 N.Y.S.2d 500, 633 N.E.2d 1104 [1994] ; see 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] ).
In light of our determination, defendant's remaining contentions have been rendered academic.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.