People v. ScharboroughPeople v. Scharborough
Decided and Entered: December 31, 2020
Calendar Date: November 23, 2020
Before: Garry, P.J., Egan Jr., Mulvey and Colangelo, JJ.
Michelle E. Stone, Vestal, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Joseph T. Murphy of counsel), for respondent.
Garry, P.J.
Appeal from a judgment of the County Court of Chemung County (Baker, J.), rendered March 6, 2017, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the fourth degree.
In December 2015, defendant attended a house party in a
Defendant moved to suppress the physical evidence found during the search incident to the arrest, claiming that the officers’ warrantless entry into the residence was unlawful. Following a suppression hearing, County Court concluded that defendant was a guest in the vacant residence and, as such, lacked standing to challenge the warrantless entry. Later, defendant pleaded guilty to criminal possession of a controlled substance in the fourth degree and was sentenced, as a second felony offender with a prior violent felony offense, to a prison term of five years followed by three years of postrelease supervision. Defendant appeals.
Defendant first asserts that his guilty plea was involuntary and should be vacated. However, this challenge “is unpreserved for our review as the record does not reflect that defendant made an appropriate postallocution motion, despite the opportunity to do so prior to the imposition of his sentence” (People v Gomez, 162 AD3d 1311, 1312 [2018], lv denied 32 NY3d 1172 [2019]; see People v Smith, 187 AD3d 1246, 1247 [2020]). Moreover, “as the record does not reflect that defendant made any statements that were inconsistent with [his] guilt, negated an element of the charged crime[] or otherwise called into question the voluntariness of [his] plea, the narrow exception to the preservation requirement was not triggered” (People v Labao, 178 AD3d 1238, 1239 [2019], lv denied 35 NY3d 971 [2020]; see generally People v Lopez, 71 NY2d 662, 666-667 [1988]). To the extent that one of defendant‘s ineffective assistance claims — the failure of counsel to secure independent testing of the drugs found on defendant — implicates the validity of his plea, this claim involves matters outside of the record before us that is more properly the subject of a
Defendant further claims that County Court improperly denied his suppression motion, as he had standing to challenge the warrantless entry. “The Fourth Amendment protects all citizens from unreasonable government intrusions into legitimate expectations of privacy” (People v Mercado, 68 NY2d 874, 875 [1986] [internal quotation marks, ellipsis and citation omitted]). As pertinent here, “[i]n order to establish standing to allege a violation of one‘s Fourth Amendment rights, a defendant must demonstrate a legitimate expectation of privacy in premises belonging to another[,] e.g., an overnight guest or a familial or other socially recognized relationship” (People v Crippen, 156 AD3d 946, 947-948 [2017] [internal quotation marks and citation omitted]; see generally People v Ortiz, 83 NY2d 840, 842 [1994]).
At the suppression hearing, defendant testified that the party‘s host — his mother — had organized a party for him in the vacant residence and that she had permission from the property owner to host the party at that location. Defendant admitted that he was a guest of the property owner and denied any intention to remain in the residence beyond the conclusion of the party. The property owner testified that he had “rented” the empty residence to defendant‘s mother for purposes of holding the party, without charging a fee. He expected that the partygoers would remain “[until] the party was over,” and further stated that, although the partygoers had control over the space during the party, “they [were] not going to move in.” Several witnesses, including defendant, testified that there was no furniture in the residence at the time of the party, and two of the partygoers testified that they had residences elsewhere. Given this testimony, we agree with County Court that defendant did not have a legitimate expectation of privacy while attending the party at the vacant residence, and find that the court properly denied defendant‘s motion to suppress (see People v Ponder, 54 NY2d 160, 166 [1981]; compare People v Mason, 248 AD2d 751, 753 [1998]).
Defendant asserts that his sentence is harsh and excessive. Defendant, a second felony offender with a prior violent felony conviction, entered into an open plea agreement, with sentencing left to County Court, and was sentenced to a prison term of five years followed by three years of postrelease supervision, which is within the permissible statutory range (see
Egan Jr., Mulvey and Colangelo, JJ., concur.
ORDERED that the judgment is affirmed, and matter remitted for entry of an amended uniform sentence and commitment form.