| People v Ibarguen |
| 2019 NY Slip Op 05149 [173 AD3d 1207] |
| June 26, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Eric Ibarguen, Appellant. |
Paul Skip Laisure, New York, NY (Benjamin Welikson of counsel), for appellant.
John M. Ryan, Acting District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, and Kathryn E. Mullen of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (GeneLopez, J.), rendered May 9, 2017, convicting him of criminal sale of a controlled substance in thethird degree, upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, without a hearing (Toko Serita, J.), of that branch of the defendant's omnibus motionwhich was to suppress physical evidence.
Ordered that the judgment is affirmed.
We agree with the Supreme Court's determination to deny that branch of the defendant'somnibus motion which was to suppress physical evidence without conducting a hearing(see CPL 710.60 [3] [a]). The defendant failed to establish a reasonable expectation ofprivacy in the apartment at which he was merely a casual visitor, and thus, he lacked standing tochallenge the warrantless entry and subsequent search of the premises (see People vOrtiz, 83 NY2d 840 [1994]).
The Supreme Court should have granted the defendant's request to instruct the jury oncross-racial identification (see People vBoone, 30 NY3d 521 [2017]; People v Jordan, 167 AD3d 1044 [2018]). However, the failure togive the charge constituted harmless error, as there was overwhelming evidence of thedefendant's guilt and no significant probability that the defendant would have been acquitted ifnot for the error (see People v Jordan, 167 AD3d at 1045).
The defendant's contention that he was deprived of a fair trial because the Supreme Court'scharge regarding flight as consciousness of guilt lacked a factual predicate and was misleading iswithout merit, and any error in giving the charge was harmless (see People v Crimmins,36 NY2d 230 [1975]; People vRedd, 81 AD3d 751 [2011]). Dillon, J.P., Balkin, Austin and Barros, JJ., concur.