PEOPLE v. CLARK

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Leona CLARK, Defendant-Appellant.

Decided: April 28, 2006

PRESENT:  PIGOTT, JR., P.J., SCUDDER, KEHOE, PINE, AND HAYES, JJ. Thomas E. Andruschat, East Aurora, for Defendant-Appellant. Frank J. Clark, District Attorney, Buffalo (Steven Meyer of Counsel), for Plaintiff-Respondent.

 On appeal from a judgment convicting her, following a jury trial, of criminal possession of a controlled substance in the second degree (Penal Law § 220.18[1] ), defendant contends that Supreme Court erred in denying that part of her omnibus motion seeking to suppress the cocaine seized by officers employed by the Buffalo Municipal Housing Authority (Housing Authority).   The cocaine was seized from the closed compartment of a shaving bag that defendant contended in her suppression motion belonged to her friend, codefendant Elliott James.   Although we concluded in the codefendant's appeal that the search was improper (People v. James, 27 A.D.3d 1089, 811 N.Y.S.2d 245), we agree with the People that defendant lacks standing to contest the legality of the search.   Defendant's “moving papers [were] devoid of any allegation that defendant had a legitimate expectation of privacy” (People v. Christian, 248 A.D.2d 960, 960, 670 N.Y.S.2d 957, lv. denied 91 N.Y.2d 1006, 676 N.Y.S.2d 134, 698 N.E.2d 963), and thus defendant failed to meet her “burden of establishing standing by demonstrating a personal legitimate expectation of privacy” in the shaving bag that was found in her bedroom (People v. Whitfield, 81 N.Y.2d 904, 905-906, 597 N.Y.S.2d 641, 613 N.E.2d 547;  see People v. Gatti, 277 A.D.2d 1041, 716 N.Y.S.2d 182, lv. denied 96 N.Y.2d 783, 725 N.Y.S.2d 647, 749 N.E.2d 216;  see also People v. Thomas, 246 A.D.2d 611, 667 N.Y.S.2d 294, lv. denied 91 N.Y.2d 1013, 676 N.Y.S.2d 141, 698 N.E.2d 970;  People v. Miller, 228 A.D.2d 979, 980, 645 N.Y.S.2d 119, lv. denied 88 N.Y.2d 990, 649 N.Y.S.2d 397, 672 N.E.2d 623).

 Although defendant contends that the court erred in failing to reopen the suppression hearing based on the testimony of one of the Housing Authority officers at trial, defendant failed to join in the codefendant's motion to reopen the hearing on that ground and therefore has failed to preserve that contention for our review (see CPL 470.05[2];  People v. Highsmith, 259 A.D.2d 1006, 688 N.Y.S.2d 298, lv. denied 93 N.Y.2d 925, 693 N.Y.S.2d 509, 715 N.E.2d 512;  see generally People v. Hill, 300 A.D.2d 1125, 752 N.Y.S.2d 454, lv. denied 99 N.Y.2d 615, 757 N.Y.S.2d 826, 787 N.E.2d 1172).   We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

Defendant also failed to preserve for our review her contentions that the evidence is legally insufficient to support the conviction (see generally People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919) and that reversal is warranted based on a Batson violation (see People v. Latimer, 278 A.D.2d 863, 718 N.Y.S.2d 692, lv. denied 96 N.Y.2d 785, 725 N.Y.S.2d 649, 749 N.E.2d 218;  People v. Hoskins, 254 A.D.2d 729, 729-730, 678 N.Y.S.2d 563;  People v. Williams, 206 A.D.2d 917, 614 N.Y.S.2d 842, lv. denied 84 N.Y.2d 911, 621 N.Y.S.2d 529, 645 N.E.2d 1229).   We likewise decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

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

MEMORANDUM: