Opinion
KA 02-00215.
Decided April 30, 2004.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.), rendered December 17, 2001. The judgment convicted defendant, upon a jury verdict, of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree (two counts).
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (RAYMOND C. HERMAN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: PIGOTT, JR., P.J., GREEN, PINE, WISNER, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of criminal possession of a weapon in the second degree (Penal Law § 265.03) and two counts of criminal possession of a weapon in the third degree (§ 265.02 [1], [4]). We reject the contention of defendant that Supreme Court erred in denying his motion to suppress physical evidence as the fruit of an illegal arrest. The weapon at issue was found by a police officer under a chair in the living room of an apartment as the result of a search following defendant's arrest in the bedroom of that apartment. Defendant was merely an occasional visitor to the apartment and thus lacks standing to challenge the search ( see People v. Rodriguez, 69 N.Y.2d 159, 164-165; People v. Christian, 248 A.D.2d 960, lv denied 91 N.Y.2d 1006; People v. Abreu, 239 A.D.2d 424, lv denied 90 N.Y.2d 901). "Furthermore, the defendant failed to meet his burden of establishing a `causal connection' between his arrest and the discovery of the [weapon] warranting application of the exclusionary rule" ( People v. Washington, 287 A.D.2d 752, 753, lv denied 97 N.Y.2d 763, quoting People v. Arnau, 58 N.Y.2d 27, 34). The evidence, viewed in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d 620, 621), is legally sufficient to support the conviction ( see People v. Bleakley, 69 N.Y.2d 490, 495), and the verdict is not contrary to the weight of the evidence ( see id.). Defendant abandoned his motion to dismiss the indictment and failed to preserve for our review his contention that the court erred in deferring its decision on the motion ( see People v. Rodriguez, 187 A.D.2d 291, 292). Finally, the sentence is not unduly harsh or severe.