| People v McFall |
| 2010 NY Slip Op 02686 [72 AD3d 1128] |
| April 1, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Appellant, v RaoulMcFall, Respondent. |
—[*1] G. Scott Walling, Queensbury, for respondent.
Malone Jr., J. Appeal from an order of the Supreme Court (Lamont, J.), entered June 9, 2009in Albany County, which granted defendant's motion to suppress evidence.
As a result of a report made by a housekeeping employee at a motel, police discovered drugparaphernalia and 40 grams of cocaine in a room rented by defendant. He was subsequentlyarrested and charged with two counts of criminal possession of a controlled substance in thethird degree and one count of criminally using drug paraphernalia in the second degree.Following a hearing, Supreme Court granted defendant's motion to suppress the evidencediscovered in the motel room because the search was conducted without a warrant. The Peopleappeal.[FN*]
Contrary to the People's contention, defendant was entitled to Fourth Amendment protectionduring the rental period of the motel room (see Stoner v California, 376 US 483, 490[1964]; People v Lerhinan, 90 AD2d 74, 78 [1982]) and the motel manager had noauthority to [*2]consent to a search of defendant's room (seeStoner v California, 376 US at 489; People v Wood, 31 NY2d 975, 976 [1973]). ThePeople's claim that the warrantless search was nevertheless legal because it did not exceed thescope of the search initially made by the housekeeping employee is not persuasive (seeUnited States v Allen, 106 F3d 695, 698-699 [1997], cert denied 520 US 1281[1997]; People v Ponto, 103 AD2d 573, 578 [1984]). Finally, the argument thatdefendant's privacy interest in the room was extinguished by an alleged breach of the rentalagreement is advanced for the first time on appeal and, thus, not properly before this Court(see People v Tutt, 38 NY2d 1011, 1012-1013 [1976]). Accordingly, Supreme Courtproperly granted defendant's motion to suppress the evidence.
Cardona, P.J., Lahtinen, Stein and Garry, JJ., concur. Ordered that the order is affirmed.
Footnote *: Although the notice of appealwas filed prior to the entry of the order, we will exercise our discretion, in the interest of justice,and treat the premature notice of appeal as valid (see CPL 460.10 [6]).