People v. Trotter

Feb 2, 1996
Versions:224 A.D.2d 1013
637 N.Y.S.2d 819
1996 N.Y. App. Div. LEXIS 1669

—Order unanimously reversed on the law, motion to suppress denied and matter remitted to Erie County Court for further proceedings on indictment. Memorandum: County Court erred in granting defendant’s motion to suppress a gun seized from defendant in a bedroom located at 526 Monroe Street, Buffalo. Defendant failed to meet his initial burden of establishing that he had standing "by demonstrating a personal legitimate expectation of privacy” (People v Whitfield, 81 NY2d 904, 906; see also, People v Wesley, 73 NY2d 351). To sustain that burden, defendant was not required either to testify or to present evidence on the issue of standing; he was entitled to rely on evidence elicited during the People’s direct case and during cross-examination by defense counsel of the People’s witnesses (see, People v Whitfield, supra, at 906; People v Wesley, supra, at 358, n 1; People v Gonzalez, 68 NY2d 950, 951). Furthermore, hearsay evidence is admissible to establish standing (see, CPL 710.60 [4]; People v Gonzalez, supra, at 951).

Here, the sole witness at the suppression hearing was the ar*1014resting officer, who testified for the People that, after defendant was arrested, defendant stated that he lived at 466 Best Street in the City of Buffalo, not at 526 Monroe Street. Additionally, the officer testified that the occupant of 526 Monroe Street stated that the bedroom where the gun was seized belonged to her son. No other proof was adduced regarding the issue of standing.

Thus, the record is insufficient as a matter of law to support the conclusion of the court that defendant has standing to challenge the seizure of the gun. Defendant’s affidavit was not admitted into evidence and it served only to "raise standing as an issue of fact and avoid summary judgment under CPL 710.60 (3)” (People v Whitfield, supra, at 906). (Appeal from Order of Erie County Court, McCarthy, J. — Suppress Evidence.) Present — Pine, J. P., Fallon, Wesley, Doerr and Davis, JJ.