PEOPLE v. STANLEY (2008)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (McGann, J.), rendered April 17, 2006, convicting him of criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fifth degree, and criminally using drug paraphernalia in the second degree (two counts), upon a jury verdict, and imposing sentence.  The appeal brings up for review the denial (Hanophy, J.), after a hearing (Demakos, J.H.O.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

 The defendant's contention that he possessed a legitimate expectation of privacy in the apartment searched by the police is unpreserved for appellate review (see People v. Carter, 86 N.Y.2d 721, 722–723, 631 N.Y.S.2d 116, 655 N.E.2d 157).  In any event, the Fourth Amendment guarantees the “right of the People to be secure in their persons, houses, papers, and effects from unreasonable searches.”  The “Fourth Amendment protects people, not places” (Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576), which is to say that “Fourth Amendment rights are personal rights, which may like some other constitutional rights, not be vicariously asserted” (Rakas v. Illinois, 439 U.S. 128, 133–134, 99 S.Ct. 421, 58 L.Ed.2d 387;  Brown v. United States, 411 U.S. 223, 230, 93 S.Ct. 1565, 36 L.Ed.2d 208).  In order to claim the protection of the Fourth Amendment, a defendant must have “a legitimate expectation of privacy in the invaded” place, which exists where he or she has manifested an expectation of privacy that society recognizes as reasonable (Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373, quoting Rakas v. Illinois, 439 U.S. at 143–144, 99 S.Ct. 421;  see People v. Ramirez–Portoreal, 88 N.Y.2d 99, 108, 643 N.Y.S.2d 502, 666 N.E.2d 207;  People v. Ortiz, 83 N.Y.2d 840, 842, 611 N.Y.S.2d 500, 633 N.E.2d 1104;  People v. Rodriguez, 69 N.Y.2d 159, 163, 513 N.Y.S.2d 75, 505 N.E.2d 586).  It is the defendant who must establish standing by showing a legitimate expectation of privacy in the place searched (see Rakas v. Illinois, 439 U.S. at 144, 99 S.Ct. 421;  People v. Ramirez–Portoreal, 88 N.Y.2d at 108, 643 N.Y.S.2d 502, 666 N.E.2d 207;  People v. Gonzalez, 68 N.Y.2d 950, 951, 510 N.Y.S.2d 86, 502 N.E.2d 1001;  People v. Ponder, 54 N.Y.2d 160, 165, 445 N.Y.S.2d 57, 429 N.E.2d 735).

 Applying these principles, the hearing court correctly concluded that the defendant failed to demonstrate that he had a legitimate expectation of privacy in the apartment the police searched, from which they seized a little over two grams of cocaine and various drug paraphernalia.  According to the testimony adduced at the suppression hearing, the defendant and another person had “pushed out” the prior tenant.  They did not have a lease with the landlord and had not been paying rent.  In addition, the landlord had commenced a summary proceeding to have the defendant and the other illegal occupant or squatter evicted (see RPAPL 713;  Paulino v. Wright, 210 A.D.2d 171, 172, 620 N.Y.S.2d 363;  P & A Brothers, Inc. v. City of N.Y. Dept. of Parks and Recreation, 184 A.D.2d 267, 268, 585 N.Y.S.2d 335).  Thus, given that the defendant had no legal right to possess or control the subject apartment (see Minnesota v. Carter, 525 U.S. at 88, 119 S.Ct. 469;  Rakas v. Illinois, 439 U.S. at 143 n. 12, 99 S.Ct. 421;  People v. Rodriguez, 69 N.Y.2d at 162, 513 N.Y.S.2d 75, 505 N.E.2d 586), any subjective expectation of privacy he manifested in the apartment was not objectively reasonable (see United States v. Saint–Brice, 1 Fed.Appx. 232, 234, cert. denied 532 U.S. 1044, 121 S.Ct. 2012, 149 L.Ed.2d 1013;  United States v. McRae, 156 F.3d 708, 711;  United States v. Gale, 136 F.3d 192, 195–196;  People v. Francis, 253 A.D.2d 704, 705, 679 N.Y.S.2d 2;  see also Morillo v. City of New York, 178 A.D.2d 7, 12–13, 582 N.Y.S.2d 387).

The defendant's contention that the sentencing court improperly considered charges of which he was acquitted as a basis for imposing sentence is unpreserved for appellate review (see People v. Wiggins, 6 A.D.3d 634, 774 N.Y.S.2d 798;  People v. McCrae, 1 A.D.3d 612, 613, 767 N.Y.S.2d 664), and, in any event, is without merit (see People v. McCrae, 1 A.D.3d at 613, 767 N.Y.S.2d 664;  cf. People v. Reeder, 298 A.D.2d 468, 748 N.Y.S.2d 275;  People v. Ramsey, 288 A.D.2d 240, 241, 732 N.Y.S.2d 582).  Moreover, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).