Opinion
1998-05464
Argued January 25, 2002.
February 14, 2002.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Pincus, J.), rendered May 28, 1998, convicting him of criminal possession of a controlled substance in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Fisher, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.
Andrew C. Fine, New York, N.Y. (Jeffrey I. Richman of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Amy Appelbaum of counsel), for respondent.
Before: ANITA R. FLORIO, J.P., SANDRA J. FEUERSTEIN, CORNELIUS J. O'BRIEN, THOMAS A. ADAMS, JJ.
ORDERED that the judgment is reversed, on the law, and a new trial is ordered.
As police officers were about to execute a defective search warrant at an apartment where the defendant was a guest, he dropped bags of cocaine out of the apartment window. The branch of the defendant's omnibus motion which was to suppress the seized cocaine was properly denied, since he did not have a reasonable expectation of privacy in the apartment (see, People v. Wesley, 73 N.Y.2d 351).
However, as correctly conceded by the People, a new trial is required because the Supreme Court did not obtain the defendant's written and signed consent to replace a regular juror with an alternate juror after the jury began its deliberations (see, CPL 270.35; People v. Page, 88 N.Y.2d 1, 3; People v. Perez, 237 A.D.2d 466, 467).
FLORIO, J.P., FEUERSTEIN, O'BRIEN and ADAMS, JJ., concur.