| People v Febo |
| 2018 NY Slip Op 08364 [167 AD3d 451] |
| December 6, 2018 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Willis Febo, Appellant. |
Seymour W. James, Jr., The Legal Aid Society, New York (Justine M. Luongo and AmyDonner of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Aaron Zucker of counsel), forrespondent.
Judgment, Supreme Court, New York County (Thomas Farber, J.), rendered February 25,2013, convicting him, upon his plea of guilty, of two counts of attempted criminal possession ofa weapon in the second degree and three counts of criminal possession of a weapon in the thirddegree, and sentencing him, as a second felony offender, to an aggregate term of four years,unanimously affirmed.
Defendant's suppression motion was properly denied. Defendant lacked standing to challengethe search of a backpack, which contained a revolver and ammunition, because he did notestablish that he retained a reasonable expectation of privacy in the bag. As the police lawfullyapproached defendant, he opened the front passenger door of a driver-occupied parked car, threwthe backpack inside, closed the door, and stepped away from the car. Defendant did not meet hisburden of proof with respect to standing as he failed to establish any connection with the car andhe could not reasonably expect that the driver and others would not have access to the bag(see People v Dingle, 254 AD2d 131 [1st Dept 1998], lv denied 93 NY2d 852[1999]; People v DeLaCruz, 242 AD2d 410, 413 [1st Dept 1997]). Defendant'ssuggestion that the driver's failure to react negatively to the deposit of the bag implies some sortof bailment is speculative, and in any event would not establish a reasonable expectation ofprivacy.
In any event, even if defendant had standing to challenge the search, he abandoned the bag bydivesting himself of it and disclaiming ownership (see People v Nobles, 63 AD3d 528 [1st Dept 2009], lvdenied 13 NY3d 798 [2009]; Peoplev Flynn, 15 AD3d 177, 178-179 [1st Dept 2005], lv denied 4 NY3d 853 [2005]),and the abandonment was not precipitated by unlawful police activity (see People vRamirez-Portoreal, 88 NY2d 99, 110 [1996]). Concur—Friedman, J.P., Kapnick,Webber, Kahn, Kern, JJ.