| People v Harris |
| 2012 NY Slip Op 04677 [96 AD3d 502] |
| June 12, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Joseph Harris, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Ellen Stanfield Friedman of counsel), forrespondent.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered July 7,2009, convicting defendant, after a jury trial, of attempted murder in the second degree, assault inthe first degree and criminal possession of a weapon in the second degree (two counts), andsentencing him, as a persistent violent felony offender, to an aggregate term of 45 years to life,unanimously affirmed.
The court properly denied defendant's suppression motion. Defendant lacked standing tochallenge the police recovery of a pistol from under a couch in defendant's friend's apartment,which the officers lawfully entered with a valid warrant for defendant's arrest. The hearingevidence, including hearsay rendered admissible by CPL 710.60 (4), established that defendantwas a mere visitor who had arrived on the morning of the search. Defendant's occasionalovernight stays at the apartment several years earlier were insufficient to establish that he had anexpectation of privacy in the premises (see People v Ramirez-Portoreal, 88 NY2d 99,108-109 [1996]; People v Ortiz, 83 NY2d 840, 842-843 [1994]).
Defendant's claim of standing relies heavily on the fact that defendant's parole officer hadpermitted defendant to stay temporarily at the friend's apartment. However, this did not establishstanding in the absence of evidence that defendant availed himself of that opportunity. In anyevent, before the day of the search the parole officer had already informed defendant that he wasno longer permitted to stay at his friend's apartment, because the friend was a codefendant indefendant's prior robbery case.
The record also supports the hearing court's alternative finding that the pistol was recoveredas the result of a lawful security sweep of the apartment made after executing the arrest warrant(see Maryland v Buie, 494 US 325 [1990]; People v Andino, 256 AD2d 153[1998], lv denied 93 NY2d 922 [1999]). Under the circumstances, it was reasonable tomove the couch to check if anyone was hiding behind or under it. We have considered andrejected defendant's remaining arguments concerning the suppression hearing.
The challenged portions of the prosecutor's summation were responsive to defensearguments, drew appropriate inferences from the evidence, and did not shift the burden of proof.[*2]To the extent there were any improprieties, they were not soegregious as to deprive defendant of a fair trial (see People v D'Alessandro, 184 AD2d114, 118-119 [1992], lv denied 81 NY2d 884 [1993]).
The court properly imposed a consecutive term for defendant's conviction of second-degreeweapon possession under Penal Law § 265.03 (3) (possession outside home or place ofbusiness). We note that this crime has no intent element; accordingly, the issue of whetherconsecutive sentences require separate unlawful intents (see e.g. People v Wright, 87 AD3d 229[2011], lv granted 2011 NY Slip Op 78815[U] [2011]) is not implicated here. Theevidence clearly established that defendant was carrying the weapon at the time he encounteredand shot the victim. Accordingly, the act of possession was complete before the shooting (seee.g. People v Mitchell, 34AD3d 358 [2006], lv denied 8 NY3d 988 [2007]), and consecutive sentences wereauthorized by Penal Law § 70.25 (2). To the extent defendant is raising a constitutionalclaim regarding the procedure by which the court imposed consecutive sentences, that claim iswithout merit (see Oregon v Ice, 555 US 160 [2009]).
We perceive no basis for reducing the sentence. Concur—Saxe, J.P., Catterson,Acosta, DeGrasse and Richter, JJ.