128 Misc. 2d 1030 | N.Y. Sup. Ct. | 1985
OPINION OF THE COURT
This court has found that the defendant, having moved on newly found grounds to suppress property, has submitted a question not firmly settled by the cases of the State of New York. Defendant would create standing out of a statement of a police officer to the effect that the defendant was the employer, although the defendant denies being the employer and states not a scintilla to show a reasonable expectation of privacy to the “office”, the place where the property was seized. Defendant’s reliance upon People v Sutton (91 AD2d 522) is misplaced when one reads it together with People v Barshai (100 AD2d 253 [both 1st Dept]). Sutton, seemingly similar on its law pattern, states it must be read very carefully on its particular facts. Sutton and Barshai are two cases directly on point in the law, in a field apparently barren of others directly on point in any way. Therefore, we believe our opinion below to manifest a case of first impression.
Defense’s most ingenious theory is to conjure up creative standing by analogizing its legal theory to a recent case. It has interpolated one late case, which we will cite infra, and from that case it makes a quantum leap through a one-line legalistic conclusion made by a police officer at a Grand Jury and uses it to create standing. This defendant has denied ownership and control of the area in which the property was found. The defendant
This is tortured reasoning, a transvaluation of values that this court does not follow. That motion is therefore again denied on this reargument for all of the law and reasons that are elaborated upon, and upon the cases that are cited, which follow below.
Because the issue of standing looms large to both motions, the motion to controvert search warrant as well as to suppress evidence, let us elaborate firstly on the law and facts concerning standing. To support defense argument for standing, defense cites People v Sutton (91 AD2d 522). Defense contends that the court in that case held that a defendant can rely on the police officer’s version of the occurrence to provide standing in order for a hearing to be ordered on a motion to suppress. We disagree with that defense interpretation of that case’s facts, as would affect the law in this case. In Sutton, the prosecution’s affirma
A case cited below, whose facts developed before Sutton (supra), but was written after Sutton is a very interesting case. Therefore, please read this People v Barshai case (100 AD2d 253, 256-257 [1st Dept, Mar. 29,1984]), whereat Mr. Justice Sandler wrote, “Indisputably a defendant has standing to move to suppress items of property taken from his person, precisely as would a tenant of an apartment have standing to move to suppress property seized as a result of a search of his apartment. The real question presented is the character of the allegations necessary under CPL 710.20 and 710.60 to establish the kind of proprietary or possessory interest in the seized property that would constitute defendant an aggrieved person with standing to move to suppress. More specifically, the question confronting defense counsel was whether a defendant who denied possession or ownership of certain items of evidence could nonetheless allege standing on the basis of a lawyer’s affidavit asserting what the lawyer had been told as to what the prosecutor intended to prove * * * [I]t is by no means self-evident that this language was intended to permit standing to be so established with regard to items of evidence concerning which a defendant, necessarily with direct knowledge of the facts, denies any proprietary or possessory interest.” Justice Sandler went on to write (p 257), “[I]n People v Sutton (91 AD2d 522) decided some years after defendant’s trial, and in which this court, in a carefully limited decision turning on particular facts in the record, upheld the defendant’s right to a hearing notwithstanding his failure to assert directly a possessory interest”. (Emphasis supplied.)
A study of the Federal case indicates that under the dominant Federal rule defendant would have lacked standing to move to suppress items of property as to which he did not allege, and in fact disclaimed, any proprietary or possessory interest. Even as Justice Sandler went through the entire line of cases possibly involved, and we shall not detail them here, nothing changed his opinion (see, United States v Salvucci, 448 US 83; Rakas v Illinois, 439 US 128; People v Taylor, 97 AD2d 381; United
This court has not had the benefit of reading the lower court’s opinion sustained at Barshai (supra). The lower court’s writer was Justice Rothwax, a learned Judge for whom this court has much respect. It remains to be seen whether the First Department has again seriously limited its admittedly initially limited position on standing stated at the Sutton case (supra), or does the Barshai case more turn on how a lawyer may interpret the intricacies of standing in order to measure proper legal representation, than standing itself? In any event, we certainly have, residually, an extremely parochial, limited use of Sutton, by the Appellate Division’s own words. Therefore, at the very least we have no stare decisis problem. Of course, had we interpreted that the Appellate Division, First Department, had said differently, then we would have been constrained to follow that case law. But such is not the situation. It would appear that stare decisis after reading Sutton and Barshai would seem to say that this defendant in our case at bar has no constitutional standing. Incidentally, Shephardizing Barshai we find no additional cases on this line.
In the case at bar, the defendant contends he is an employee at Ben Jack Auto Collision, 1710 St. Marks Avenue, Brooklyn, New York. The defense’s other contention is that as an employee, the defendant had a reasonable expectation of privacy in the particular area searched. He makes this bald legal claim, but he refuses to explain any facts to manifest such a curious right. The drugs were seized inside an office. This was inside the garage which was off limits to customers. No drugs or paraphernalia were found on the defendant’s person and the defendant was arrested outside the office wherein the drugs were found. The mere bald fact that the defendant is an employee does not grant him “automatic standing”. The defendant shows not a scintilla of reasoning, let alone one fact to support any reasonable expectation of privacy that he had to the office in which the drugs were found. The automatic standing rule enunciated by the defense in Jones v United States (362 US 257) has been rejected by United States v Salvucci (448 US 83, supra), People v
The defense would have the court misconstrue a reasonable expectation of privacy out of the air. The defense sets up a multitude of questions in the court’s mind, while not explaining the answer to any one question. Some of those questions include but are not exclusive of and are at all limited to, the following few examples. What possible right does an employee have to “an office” per se? Common sense dictates that most offices restricted to use by the employer do not allow the public nor employee the right to sit and put their feet up on the boss’s desk. In any event, we strongly state the defense is drawing us in, causing us to speculate while it has not supplied more than one word on the subject, that word being an employee.
Please read People v Hernandez (124 Misc 2d 840, supra), wherein the court agonized over this legal problem. Also please read United States v Pinto-Mejia (720 F2d 248 [2d Cir 1983]), which held that crew members (employees) of a ship had no proprietary interest in the hold area where the cargo was kept, and held no standing to contest seizure. The case did not grant them a reasonable expectation of privacy to the common areas of a ship’s hold.
Here we have a defendant who demands he be treated as an employee, insists that he is nothing but an employee, but states not one scintilla of right to be present in the “office”. He would transvaluate all of his own strong contentions, because of one bald sworn statement of a police officer. This police officer is not a lawyer, has run no title search, has no way of knowing who in fact, and then at law who owns the real property (the office); nor has he checked with Albany as to the corporate name; nor has he checked the county clerk’s office for the doing “business certifi
[Portions of opinion omitted for purposes of publication.]