| People v Anderson |
| 2014 NY Slip Op 04269 [118 AD3d 1137] |
| June 12, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vLesean Anderson, Appellant. |
Donnial K. Hinds, Albany, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the Supreme Court (Breslin, J.), renderedJune 14, 2012 in Albany County, convicting defendant upon his plea of guilty of thecrime of criminal possession of a weapon in the second degree.
After a confidential informant (hereinafter CI) notified the police that defendant hada gun and was in a green BMW at a certain location, the police began looking for thatvehicle and defendant. One officer saw defendant in the green BMW and others followedthe vehicle, but when they found it parked the driver had fled. The police determined thatthe unsecured vehicle needed to be towed, so they conducted an inventory search. Duringthat search, they discovered a loaded handgun in the trunk.
The People obtained an indictment charging defendant with criminal possession of aweapon in the second and third degrees. Following a hearing, Supreme Court denieddefendant's suppression motion. Defendant pleaded guilty to one count of criminalpossession of a weapon in the second degree in satisfaction of the indictment and otherpending charges, which included attempted murder. The court sentenced him, inaccordance with the plea agreement and as a second violent felony offender, to 12 yearsin prison followed by five years of postrelease supervision. Defendant appeals.
Initially, we agree with defendant's assertion that he did not validly waive his right toappeal. The record does not establish that defendant entered the waiver knowingly,intelligently [*2]and voluntarily, as it is unclear whetherhe "comprehend[ed] that an appeal waiver 'is separate and distinct from those rightsautomatically forfeited upon a plea of guilty' " (People v Bradshaw, 18 NY3d257, 264 [2011], quoting People v Lopez, 6 NY3d 248, 256 [2006]; see People v Bressard, 112AD3d 988, 988 [2013], lv denied 22 NY3d 1137 [2014]; People v Bouton, 107 AD3d1035, 1036 [2013], lv denied 21 NY3d 1072 [2013]). We must, therefore,address his other arguments.
Supreme Court properly determined that defendant did not have standing tochallenge the search of the vehicle and the seizure of the handgun. A defendant seekingto suppress evidence has the burden to allege and, if disputed, establish standing tochallenge a search (see People v Carter, 86 NY2d 721, 722-723 [1995])."Standing exists where a defendant was aggrieved by a search of a place or object inwhich he or she had a legitimate expectation of privacy" (People v Burton, 6 NY3d584, 587 [2006] [citation omitted]). While a defendant is entitled to "automaticstanding" if the People "rely solely on the statutory presumption [of possession of aweapon] contained in Penal Law § 265.15 (3) to establish his [or her] guilt"(People v Joseph, 63 AD3d420, 421 [2009]; see People v Millan, 69 NY2d 514, 519 [1987]; People v Cheatham, 54 AD3d297, 300 [2008], lv denied 11 NY3d 854 [2008]), defendant here cannot relyon that exception to his burden regarding standing. The People did not depend entirelyupon the statutory presumption of standing, but had other evidence, including one officerwho witnessed defendant driving the vehicle and the CI who provided information thatdefendant had a handgun in the vehicle and where within the vehicle the gun would belocated (see People v Joseph, 63 AD3d at 421; People v Cheatham, 54AD3d at 300-301; compare People v Rodriguez, 303 AD2d 783, 783 [2003]).Inasmuch as defendant did not own the BMW and denied that he was driving it on theday in question, he failed to allege any legitimate expectation of privacy in that vehicle.Thus, as he failed to allege or establish standing to challenge the search, the courtproperly denied his suppression motion.
Supreme Court conducted an appropriate searching inquiry into defendant's requestto proceed pro se at the suppression hearing, assuring that his decision to proceedwithout counsel was unequivocal, competent, intelligent and voluntary (see People vCrampe, 17 NY3d 469, 481 [2011]; People v Atkinson, 111 AD3d 1061, 1062 [2013]; People v Kulakov, 72 AD3d1271, 1273 [2010], lv denied 15 NY3d 775 [2010]). Defendant's remainingcontentions are without merit.
Stein, J.P., Rose and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.