| People v Guzman |
| 2017 NY Slip Op 00885 [147 AD3d 1450] |
| February 3, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v AngelGuzman, Appellant. (Appeal No.1.) |
James S. Kernan, Public Defender, Lyons, the Abbatoy Law Firm, PLLC, Rochester (DavidM. Abbatoy, Jr., of counsel), for defendant-appellant.
Richard M. Healy, District Attorney, Lyons (Bruce A. Rosekrans of counsel), forrespondent.
Appeal from a judgment of the Wayne County Court (Daniel G. Barrett, J.), rendered January26, 2012. The judgment convicted defendant, upon his plea of guilty, of burglary in the seconddegree and petit larceny (three counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon aplea of guilty of, inter alia, burglary in the second degree (Penal Law § 140.25 [2]).In appeal No. 2, defendant appeals from a judgment convicting him upon a plea of guilty of fourcounts of burglary in the second degree (§ 140.25 [2]). In both appeals, defendantcontends that he has standing to challenge the placement of GPS devices on two vehicles ownedby and registered to his girlfriend, and that the warrants and extensions authorizing the placementof the devices were issued without probable cause.
County Court properly determined that defendant lacked standing because he failed toestablish the existence of a legitimate expectation of privacy in the subject vehicles (see People v Cooper, 128 AD3d1431, 1433 [2015], lv denied 26 NY3d 966 [2015]; People v Lacey, 66 AD3d 704,705 [2009], lv denied 14 NY3d 772 [2010]). Here, as in Lacey, the evidence atthe suppression hearing established that the vehicles were owned by and registered to defendant'sgirlfriend, and there was no "evidence that . . . defendant took precautions tomaintain privacy in the subject vehicle[s] or that he had the right to exclude others therefrom"(Lacey, 66 AD3d at 706; see People v Di Lucchio, 115 AD2d 555, 556-557[1985], lv denied 67 NY2d 942 [1986]). Moreover, although an investigator testified thathe saw defendant driving one of the subject vehicles on two occasions, that evidence "isinsufficient to meet defendant's burden of establishing a reasonable expectation of privacy in thevehicle" (People v Rivera, 83 AD3d1370, 1372 [2011], lv denied 17 NY3d 904 [2011]). Based on our determination thatdefendant lacked standing to challenge the placement of the GPS devices on the vehicles, we donot address defendant's remaining contentions concerning the placement of the devices on thevehicles.
We reject defendant's further contention in appeal No. 2 that the court erred in refusing tosuppress statements that he made to the police because they were obtained in violation of hisright to counsel. First, defendant contends that his right to counsel was violated when the policeunlawfully delayed his arraignment for the purpose of obtaining a statement in the absence ofcounsel. That contention lacks merit. Defendant's right to counsel had not attached inasmuch ashe had not requested an attorney and formal proceedings had not begun with respect to thecharges underlying appeal No. 2 (see People v Ramos, 99 NY2d 27, 34 [2002]), and it iswell settled that "a delay in arraignment for the purpose of further police questioning does notestablish a deprivation of the State constitutional right to counsel" (id. at 37). Second,defendant contends that his right to counsel had attached with respect to the charges underlyingappeal No. 2 because the charges underlying appeal Nos. 1 and 2 were all related, and his right tocounsel had indisputably attached with respect to the burglary at issue in appeal No. 1. Althoughdefendant is correct that his right to counsel had attached with respect to the charges underlyingappeal No. 1 inasmuch as the indictment on those charges was filed before defendant wasquestioned by law enforcement officials (see generally People v Kazmarick, 52 NY2d322, 324 [1981]; People v Brinson,28 AD3d 1189, 1189-1190 [2006], lv denied 7 NY3d 810 [2006]), we conclude thatthe law enforcement officials were not prohibited from questioning defendant in the absence ofcounsel with respect to the charges in appeal No. 2. Defendant was not represented by counselwith respect to the charges underlying appeal No. 1, and the charges underlying each appeal areunrelated because they arose from separate burglaries occurring at different dwellings (see People v Hooks, 71 AD3d1184, 1185 [2010]; People v Brown, 216 AD2d 670, 672 [1995], lv denied86 NY2d 791 [1995]; People v Ferringer, 120 AD2d 101, 107 [1986]).Present—Whalen, P.J., Centra, Lindley, DeJoseph and Scudder, JJ.