PEOPLE v. BROOKS

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

The PEOPLE, etc., Respondent, v. Ian BROOKS, Appellant.

Decided: December 26, 2000

WILLIAM D. FRIEDMANN, J.P., GABRIEL M. KRAUSMAN, HOWARD MILLER and SANDRA J. FEUERSTEIN, JJ. Lynn W.L. Fahey, New York, N.Y. (Katherine R. Schaefer and Barry Stendig of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Florence M. Sullivan of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Feldman, J.), rendered August 8, 1997, convicting him of attempted assault in the first degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress physical evidence and his statements to law enforcement authorities.

ORDERED that the judgment is affirmed.

 The hearing court properly refused to suppress a gun and the defendant's statements to law enforcement officials.   The defendant failed to establish that he had a reasonable expectation of privacy in the apartment in which he was arrested.   Thus, he lacked standing to challenge the warrantless entry and search of the premises (see, People v. Wesley, 73 N.Y.2d 351, 540 N.Y.S.2d 757, 538 N.E.2d 76;  People v. Walker, 150 A.D.2d 408, 540 N.Y.S.2d 838;  People v. McGaha, 144 A.D.2d 388, 533 N.Y.S.2d 931).

 The trial court properly refused to charge the lesser-included offense of attempted assault in the second degree, as no reasonable view of the evidence supports the conclusion that the defendant intended to cause the complainant anything less than “serious physical injury * * * by means of a deadly weapon” (Penal Law § 120.10[1];  see, People v. Butler, 84 N.Y.2d 627, 620 N.Y.S.2d 775, 644 N.E.2d 1331;  cf., People v. Palmer, 197 A.D.2d 712, 602 N.Y.S.2d 921).   The defendant aimed his gun in the direction of the complainant and fired.   The defendant pursued the complainant and shot through three windows of his van.   Moreover, a bullet fragment was found lodged in the collar of the complainant's sweater.

MEMORANDUM BY THE COURT.

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