THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. WILLIE HOLMES JR DEFENDANT APPELLANT (2010)

MEMORANDUM AND ORDER

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

Memorandum:  On appeal from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree (Penal Law § 265.03 [former (3) ] ), defendant contends that Supreme Court erred in refusing to suppress the weapon and his statements to the police.   We reject that contention.   The police found the weapon in a duffel bag in the bedroom closet of defendant's girlfriend during a search of the house co-leased by defendant's girlfriend and her mother.   Defendant resided in the bedroom part of the time and kept personal items there.   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).   The People contest the standing of defendant to challenge the search of the duffel bag only, thereby conceding that he had a legitimate expectation of privacy in the bedroom (see generally People v. Gonzalez, 88 N.Y.2d 289, 292-293).   We agree with the People that defendant failed to establish a legitimate expectation of privacy in the duffel bag or its contents inasmuch as no evidence was presented establishing his ownership of the bag (see generally People v. Whitfield, 81 N.Y.2d 904, 905-906;  People v. Clark, 28 AD3d 1231, 1232;  People v. Gatti, 277 A.D.2d 1041, 1042, lv denied 96 N.Y.2d 783).   We therefore consider the propriety of the search of the bedroom only.

Affording deference to the factual findings and credibility determinations of the court (see generally People v. Prochilo, 41 N.Y.2d 759, 761), we conclude that the mother of defendant's girlfriend had actual authority to consent to the search of the bedroom.   Because the mother was a co-lessee of the residence and paid the rent, she

“ ‘share[d] a common right of access to or control of the property to be searched’ “ (People v. Madill, 26 AD3d 811, 811, lv denied 6 NY3d 850, quoting People v. Cosme, 48 N.Y.2d 286, 290).   She therefore had authority to consent to a warrantless search of the bedroom in the absence of defendant or his girlfriend (see People v. Pugh, 246 A.D.2d 679, 681, lv denied 91 N.Y.2d 976, 92 N.Y.2d 882;  People v. Adams, 244 A.D.2d 897, 898, lv denied 91 N.Y.2d 887, 888;  People v. Moorer, 58 A.D.2d 878, 879).   Even assuming, arguendo, that the mother lacked actual authority to consent to that search, we conclude that the police “relied in good faith on [her] apparent authority ․ to consent to the search, and the circumstances reasonably indicated that [she] had the requisite authority to consent to the search” (People v. Fontaine, 27 AD3d 1144, 1145, lv denied 6 NY3d 847;  see People v. Cruz, 272 A.D.2d 922, 924, affd 96 N.Y.2d 857;  People v. Gates [appeal No. 2], 168 A.D.2d 995, lv denied 77 N.Y.2d 906).   We further conclude that the mother's consent was voluntary (see People v. Caldwell, 221 A.D.2d 972, lv denied 87 N.Y.2d 920;  see generally People v. Gonzalez, 39 N.Y.2d 122, 128-129).   Based on our determination that the warrantless search of the bedroom was valid, we conclude that the court properly refused to suppress the weapon and defendant's statements to the police as fruit of the poisonous tree (see People v. Carter, 39 AD3d 1226, 1226-1227, lv denied 9 NY3d 863;  cf.  People v. Riddick, 70 AD3d 1421, 1424, lv denied 14 NY3d 844).

Patricia L. Morgan

Clerk of the Court