People v. Ladson

Feb 4, 1997
Versions:236 A.D.2d 217
654 N.Y.S.2d 115
1997 N.Y. App. Div. LEXIS 794

—Judgment, Supreme Court, New York County (Martin Rettinger, J.), rendered April 20, 1994, convicting defendant, upon his guilty plea, of attempted criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to a term of l1/2 to 3 years, unanimously affirmed.

The hearing court properly denied defendant’s motion to suppress physical evidence. Defendant lacked standing to challenge the search of the apartment in question, because there is no dispute that defendant did not reside in this apartment and only visited there on occasion. There is no procedural bar to our consideration of defendant’s lack of standing as a ground for affirmance. Initially, we note that the hearing court never actually decided the standing issue in defendant’s favor. Assuming, arguendo, that the court’s ruling may be read as resolving the issue in defendant’s favor, the "adverse” ruling that may be considered by this Court on appeal (CPL 470.15 [1]; People v Smith, 183 AD2d 653, 657, lv denied 80 NY2d 910) is the court’s denial of suppression of the handgun, including the component issue of standing, an issue which was properly preserved by the prosecution. In any event, the People met their burden of establishing that the apartment was searched with the voluntary consent (see, People v Gonzalez, 39 NY2d 122) of the actual tenant, who enthusiastically agreed to the officers’ search with the express purpose of having any firearm removed from the premises. Defendant’s argument that the tenant succumbed to "overbearing police conduct” is unsubstantiated. The tenant’s consent was acquired under circumstances that attenuated any possible prior illegality with respect to the police officers’ initial entry (People v Borges, 69 NY2d 1031, 1033). Concur—Sullivan, J. P., Ellerin, Rubin and Mazzarelli, JJ.