| People v Jones |
| 2017 NY Slip Op 07641 [155 AD3d 1103] |
| November 2, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Christine M. Jones, Appellant. |
Teresa C. Mulliken, Harpersfield, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (David M. Petrush of counsel), forrespondent.
Mulvey, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered June 11, 2015, convicting defendant upon her plea of guilty of the crime of criminalpossession of a controlled substance in the third degree.
In April 2014, a confidential informant purchased heroin on two occasions from defendant'sboyfriend, Arthur Anderson, at an apartment located in the Village of Endicott, Broome Countywhere defendant's friend resided. Members of the City of Binghamton Police Departmentthereafter obtained and executed two search warrants. The first warrant, for defendant's person,produced no narcotics and the second warrant, for the apartment, disclosed heroin secreted incans with false bottoms. Packaging materials and face masks containing the DNA of defendantand Anderson, believed to be drug paraphernalia, were also found in the apartment.
Defendant was thereafter charged in an eight-count indictment with three counts of criminalpossession of a controlled substance in the third degree and other crimes stemming from, asrelevant here, the search of the apartment.[FN1] Defendant moved to suppress, among otherthings, the physical evidence found in the apartment, claiming that the search warrant was notsupported by probable cause and was defective, and requested a Darden hearing. At thehearing on defendant's omnibus motion, County Court denied her motion to suppress the physicalevidence obtained in the apartment pursuant to the execution of the search warrant, without ahearing. The court concluded that, upon review of the search warrant application, the searchwarrant was facially valid. The court further denied the request for a Darden hearing(see People v Darden, 34 NY2d 177 [1974]).[FN2] Defendant thereafter pleaded guilty under count2 of the indictment to criminal possession of a controlled substance in the third degree insatisfaction of all charges, pursuant to a plea agreement that left sentencing to the court'sdiscretion with a cap of 4
We affirm. Defendant lacked standing to challenge the search warrant or the search of theapartment pursuant to that warrant. A "defendant seeking suppression of evidence [has] the initialburden of showing sufficient grounds for the motion based on sworn allegations of fact" and"such grounds necessarily include a showing of standing—that is, a legitimate expectationof privacy in the searched premises" (People v Wesley, 73 NY2d 351, 358-359 [1989];see CPL 710.60; People vScully, 14 NY3d 861, 864 [2010]; People v Ramirez-Portoreal, 88 NY2d 99,108 [1996]). Where, as here, criminal charges are "predicated on ordinary constructivepossession principles, standing is available only if the defendant demonstrates a personallegitimate expectation of privacy in the searched premises" (People v Tejada, 81 NY2d861, 862 [1993] [internal quotation marks, brackets and citation omitted]).[FN3] Defendant did not submit apersonal affidavit or any proof from which it could be concluded that she had such anexpectation of privacy with respect to the apartment, which was not her residence, and hermotion papers are devoid of any allegations of fact supporting such an expectation. Her"presence in an apartment in which [s]he did not reside did not confer standing upon [her] tochallenge the search and seizure in that apartment" (id. at 863; see People v Jones, 47 AD3d 961,963-964 [2008], lv denied 10 NY3d 812 [2008]; compare People v Cleveland, 14 AD3d 798, 799 [2005], lvdenied 4 NY3d 829 [2005]). Further, the affidavit of her attorney, who lacked personalknowledge, "will not suffice" (People v Cleveland, 14 AD3d at 799).
Accordingly, as defendant failed to allege facts establishing her standing to challenge thesearch of the apartment and seizure of the drugs and paraphernalia, her motion to suppress wasproperly denied without a hearing (see CPL 710.60 [3] [a], [b]; People v Burton, 6 NY3d 584,587-588 [2006]; People v Jones, 47 AD3d at 964). Furthermore, given the foregoing, shedid not have standing to challenge the warrant or County Court's refusal to conduct aDarden inquiry (see People v Christian, 248 AD2d 960, 961 [1998], lvdenied 91 NY2d 1006 [1998]; People v Abreu, 239 AD2d 424, 424 [1997], lvdenied 90 NY2d 901 [1997]; People v Bandera, 166 AD2d 657, 657 [1990];People v Melendez, 160 AD2d 739, 739 [1990], lv denied 76 NY2d 792 [1990];see generally People v Crooks, 27NY3d 609, 612-613 [2016]).
With regard to defendant's claim that her guilty plea was not knowing, voluntary orintelligent, this claim is not preserved for our review as the record does not reflect that she madean appropriate postallocution motion to withdraw her plea (see CPL 220.60 [2]; People v Taylor, 144 AD3d 1317,1318 [2016], lv denied 28 NY3d 1151 [2017]). Further, defendant did not make anystatements during the plea allocution that cast doubt on her guilt or called into question thevoluntariness of her plea so as to trigger the narrow exception to the preservation requirement(see People v Lopez, 71 NY2d 662, 665 [1988]; see also People v Williams, 27 NY3d 212, 219-220 [2016]). Whiledefendant protested County Court's imposition of a sentence, arguing that the minimum sentenceshould be imposed, she did not make statements at sentencing that triggered the narrowexception to the preservation requirement (compare People v Gresham, 151 AD3d 1175, 1177-1178[2017]).
Finally, we are not persuaded by defendant's contention that the sentence was harsh andexcessive. Contrary to her claim that she was promised a flat two-year prison sentence, CountyCourt made clear that, under the terms of the agreement, sentencing would be left to itsdiscretion. The court advised defendant that it could impose a sentence of between two yearswith 1
Egan Jr., J.P., Lynch and Rose, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1:Anderson was charged in thesame indictment in six of the eight counts.
Footnote 2:While County Court had initiallyincorrectly stated that defendant had not requested a Darden hearing, the court then ruledon the request and denied the hearing.
Footnote 3:Likewise, the record did notreflect that defendant was entitled to automatic standing based upon the People's need or intent torely on the statutory room presumption, as there was no proof that the drugs were found in plainview or in close proximity to defendant (see Penal Law § 220.25 [2]; People v Jones, 47 AD3d 961, 964[2008], lv denied 10 NY3d 812 [2008]).