People v Leiva

People v Leiva 2016 NY Slip Op 08009 Decided on November 29, 2016 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 29, 2016
Friedman, J.P., Sweeny, Saxe, Kapnick, Gesmer, JJ.
2323 2333/12

[*1]The People of the State of New York, Respondent,

v

Steven Leiva, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (Ellen Dille of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Catherine M. Reno of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Michael J. Gross, J. at suppression motion; John S. Moore, J. at plea and sentencing), rendered June 13, 2014, convicting defendant of criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to a term of two to four years, unanimously affirmed.

Although we do not find that defendant made a valid waiver of his right to appeal (see People v Powell, 140 AD3d 401 [1st Dept 2016]), we find that the motion court properly denied defendant's suppression motion, without granting a hearing. Defendant failed to offer any facts that would support an allegation that he had an objectively reasonable expectation of privacy in a bag containing a pistol and ammunition, and the prosecution's version of the incident did not support such a claim (see People v Burton, 6 NY3d 584, 587 [2006]; People v Ramirez-Portoreal, 88 NY2d 99, 110 [1996]). Furthermore, aside from the issue of standing, defendant failed to offer any facts to rebut the assertions in the felony complaint, voluntary disclosure form and the People's response to his motion, demonstrating that the police conduct was lawful, and that the codefendant abandoned the bag (see e.g. People v Velez, 281 AD2d 311 [1st Dept 2001], lv denied 96 NY2d 908 [2001]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 29, 2016

CLERK