PEOPLE v. CHRISTIAN (1998)

Defendant appeals from a judgment convicting him of criminal possession of a controlled substance in the first degree (Penal Law § 220.21[1] ) and criminally using drug paraphernalia in the second degree (Penal Law § 220.50 [3] ).  Defendant contends that the application for a search warrant did not establish probable cause;  that Supreme Court should not have denied his motion to suppress without conducting a probable cause hearing and a Darden inquiry;  that the court erred in admitting the opinion testimony of the arresting officers;  that the court erred in admitting evidence of a prior uncharged crime;  that the verdict is against the weight of the evidence;  that the sentence is harsh and excessive;  that he was deprived of a fair trial by prosecutorial misconduct on summation;  and that the court erred in refusing to strike certain testimony.

 Defendant lacks standing to challenge the search of the apartment and seizure of the drugs and scale.   The People's failure to raise the issue of standing in the suppression court does not relieve defendant of his burden to plead and prove that he had a legitimate expectation of privacy in the places searched or the items seized (see, People v. Johnson, 154 A.D.2d 932, 545 N.Y.S.2d 877, lv. denied 75 N.Y.2d 771, 551 N.Y.S.2d 913, 551 N.E.2d 114, citing CPL 710.60 and People v. Wesley, 73 N.Y.2d 351, 358-359, 540 N.Y.S.2d 757, 538 N.E.2d 76;  see generally, Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633).   Defendant's moving papers are devoid of any allegation that defendant had a legitimate expectation of privacy in the apartment, in which he was a recent and occasional visitor, or in the bookbag in which most of the drugs were found.   Because defendant failed to establish standing (see, People v. Rodriguez, 69 N.Y.2d 159, 164-165, 513 N.Y.S.2d 75, 505 N.E.2d 586;  People v. Wesley, 154 A.D.2d 880, 881, 546 N.Y.S.2d 46, lv. denied 75 N.Y.2d 777, 551 N.Y.S.2d 919, 551 N.E.2d 120), he may not challenge the warrant or the court's refusal to conduct a probable cause hearing or a Darden inquiry.   In any event, defendant's challenges are without merit.   The warrant application establishes probable cause by demonstrating the reliability and personal knowledge of the informant (see, People v. Johnson, 66 N.Y.2d 398, 402, 497 N.Y.S.2d 618, 488 N.E.2d 439;  People v. Landy, 59 N.Y.2d 369, 375, 465 N.Y.S.2d 857, 452 N.E.2d 1185;  People v. Rodriguez, 52 N.Y.2d 483, 488-489, 438 N.Y.S.2d 754, 420 N.E.2d 946).   Further, a challenge to the facial sufficiency of a written warrant application presents an issue of law that does not require a hearing (see, People v. Glen, 30 N.Y.2d 252, 256, 262, 331 N.Y.S.2d 656, 282 N.E.2d 614;  People v. Solimine, 18 N.Y.2d 477, 480, 276 N.Y.S.2d 882, 223 N.E.2d 341, rearg. denied 21 N.Y.2d 1041, 291 N.Y.S.2d 1025, 238 N.E.2d 507;  People v. Dunn, 155 A.D.2d 75, 80, 553 N.Y.S.2d 257, affd. 77 N.Y.2d 19, 563 N.Y.S.2d 388, 564 N.E.2d 1054, cert. denied 501 U.S. 1219, 111 S.Ct. 2830, 115 L.Ed.2d 1000).   Finally, where the search has been conducted pursuant to a presumptively valid warrant based on a sworn application, defendant must demonstrate, as a predicate for invoking the Darden procedure, that the averments concerning the informant and his information were made falsely or with reckless disregard for the truth (see, Franks v. Delaware, 438 U.S. 154, 171-172, 98 S.Ct. 2674, 2684-2685, 57 L.Ed.2d 667;  People v. Ferron, 248 A.D.2d 962, 670 N.Y.S.2d 955 [decided herewith] ).  Defendant's motion papers contain no sworn allegations of fact that the informant does not exist, that the communications attributed to the informant were fabricated, or that the warrant application was falsely sworn.   Under the circumstances, the court properly rejected the request for a Darden inquiry.

 The court did not err in admitting the opinion testimony of the arresting officers concerning usage and custom in the drug trade and police procedure in drug investigations (see, People v. Santiago, 243 A.D.2d 328, 663 N.Y.S.2d 535;  People v. Greer, 217 A.D.2d 1003, 1004, 630 N.Y.S.2d 604).   The court properly admitted evidence of an uncharged crime because the prior incident in which defendant dispensed drugs was relevant to show defendant's knowledge of the presence and weight of the drugs in the bookbag, and its probative weight on that issue outweighed any prejudice (see, People v. Tineo, 232 A.D.2d 667, 668, 649 N.Y.S.2d 445, lv. denied 89 N.Y.2d 1102, 660 N.Y.S.2d 396, 682 N.E.2d 997;  People v. Dennis, 210 A.D.2d 803, 805, 620 N.Y.S.2d 614, lv. denied 85 N.Y.2d 937, 627 N.Y.S.2d 999, 651 N.E.2d 924;  People v. Glover, 165 A.D.2d 880, 881, 560 N.Y.S.2d 350, lv. denied 77 N.Y.2d 906, 569 N.Y.S.2d 938, 572 N.E.2d 621).   Further, the evidence overwhelmingly establishes defendant's actual or constructive possession of the drugs, and thus the verdict is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

We have considered the remaining contentions of defendant, including his challenge to the severity of the sentence, and conclude that they are without merit.

Judgment unanimously affirmed.

MEMORANDUM: