| People v Allen |
| 2008 NY Slip Op 07000 [54 AD3d 868] |
| September 16, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JohnAllen, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky,and Jonathan D. Martin of counsel), for respondent.
Appeal by defendant from a judgment of the Supreme Court, Kings County (Brennan, J.),rendered April 26, 2006, convicting him of criminal possession of a controlled substance in thefifth degree and criminal possession of a controlled substance in the seventh degree, upon a juryverdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Gary,J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.
Ordered that the judgment is affirmed.
The defendant was arrested in the vestibule of the apartment building where he lived, andeight packets of cocaine were recovered from his person. During the Mapp/Dunawayhearing (see Mapp v Ohio, 367 US 643 [1961]; Dunaway v New York, 442 US200 [1979]), the defendant requested that the court also hold a hearing pursuant to Payton vNew York (445 US 573 [1980]) on the ground that he had an expectation of privacy in thevestibule. The request was denied, and following the Mapp/Dunaway hearing, the courtdenied that branch of the defendant's omnibus motion which was to suppress the drugs. Thedefendant moved for leave to reargue his application for a Payton hearing. The SupremeCourt granted the motion and, upon reargument, adhered to its original determination.[*2]
The defendant's contention that he was entitled to ahearing to determine whether his warrantless arrest was unlawful under Payton is withoutmerit. While the police may not enter a person's home without a warrant absent exigentcircumstances or consent (see Payton v New York, 445 US 573 [1980]), a defendant has"a diminished expectation of privacy" in the open areas of a building which are subject to thecommon use of the tenants in that building (People v Funches, 89 NY2d 1005, 1007[1997]; see People v Washington, 287 AD2d 752 [2001]). Here, the defendant wasarrested while standing in the vestibule of his apartment building. Although the apartmentbuilding had only six apartments, the defendant failed to demonstrate that he had any legitimateexpectation of privacy in the apartment building's vestibule, as it was accessible to all tenants andtheir invitees (see People v Washington, 287 AD2d at 753). Accordingly, uponreargument, the court properly adhered to its determination denying the defendant's request for aPayton hearing.
The defendant claims that he was prejudiced by the People's delay in producing notes madeby police department chemists who testified that the contents of the ziploc bags recovered uponhis arrest contained cocaine. The prosecution is required to produce, before the prosecutor'sopening address, "[a]ny written or recorded statement . . . made by a person whomthe prosecutor intends to call as a witness at trial, and which relates to the subject matter of thewitness's testimony" (CPL 240.45 [1] [a]). However, "a defendant is not entitled to reversal ofthe judgment of conviction unless there is a showing that he or she has been substantiallyprejudiced by the late delivery" (People v Page, 296 AD2d 427, 427-428 [2002] [internalquotation marks omitted]; see CPL 240.75). Here, defense counsel received some of thenotes prior to the trial and was given the remaining notes before his cross-examination of eachchemist. The defendant has failed to establish that he was in any way prejudiced by the delay(see People v Vidal, 234 AD2d 403 [1996]). Skelos, J.P., Ritter, Florio and Carni, JJ.,concur.