PEOPLE v. HUNTER (2010)

Defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ). Contrary to the contention of defendant, he failed to establish that he had standing to challenge the search of the apartment in which he was arrested, and thus Supreme Court properly refused to suppress the evidence seized therefrom. We note at the outset that, “[b]ecause defendant has the burden to allege facts sufficient to warrant suppression, the People are not precluded from raising the issue of standing for the first time on appeal” (People v. Hooper, 245 A.D.2d 1020, 1021; see People v. McCall, 51 AD3d 822, lv denied 11 NY3d 856; People v. Jones, 182 A.D.2d 1066). “Here, defendant offered no evidence at the suppression hearing, and there was nothing in the People's evidence to support defendant's alleged expectation of privacy in the [apartment] that was searched. The allegations in defense counsel's supporting affirmation concerning defendant's expectation of privacy in the [apartment] served only to raise standing as an issue of fact and avoid summary judgment under CPL 710.60(3)” (People v. Washington, 39 AD3d 1228, 1229, lv denied 9 NY3d 870 [internal quotation marks omitted]; cf. People v. Telfer, 175 A.D.2d 638, lv denied 78 N.Y.2d 1130; see generally People v. Trotter, 224 A.D.2d 1013). The only evidence presented at the suppression hearing on the issue of defendant's standing was the testimony of a police officer, who testified that defendant's mother told him that defendant did not live at the apartment and stayed there “very rarely.” There was no evidence that defendant had a key to the apartment or that he kept any clothing or other belongings there. Consequently, upon our review of the factors relevant to a determination of standing (see People v. Jose, 252 A.D.2d 401, 403, affd 94 N.Y.2d 844), we conclude that defendant was, at most, a casual visitor who lacked standing to challenge the search of the apartment (see People v. Rodriguez, 69 N.Y.2d 159, 163; cf. Telfer, 175 A.D.2d 638). In light of our determination, we need not consider defendant's remaining contentions.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: