People v Green

[*1] People v Green 2008 NY Slip Op 51711(U) [20 Misc 3d 1133(A)] Decided on August 11, 2008 Supreme Court, New York County McLaughlin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 11, 2008
Supreme Court, New York County

The People of the State of New York, Plaintiff,

against

Edward Green, Defendant.



5643/2007

Edward J. McLaughlin, J.

Defendant moves to reargue this court's decision denying his motion to suppress drugs, contraband, and other property recovered by police during the execution of a search warrant for the southwest apartment on the fourth floor of 451 Lenox Avenue. He contends that he has standing to contest the search of that apartment because he was the building superintendent and an invited guest of the resident of that apartment. Alternatively, he asks to reopen the hearing on the issue of standing. He also argues that he has standing to suppress the keys that the police recovered from his person when he was apprehended in the apartment. He also asks this court to review the Grand Jury minutes to determine whether the Grand Jury instructions properly explained the statutory room presumption of Penal Law 220.25 (2).

The motion to reargue is granted. This court agrees that the keys recovered from defendant's person must be suppressed as the fruit of the illegal police conduct that preceded his apprehension. This court otherwise adheres to its previous decision to deny the motion to suppress for lack of standing.

The keys recovered from defendant after the police had apprehended him must be suppressed. Defendant certainly has standing to contest the police seizure of property from his person, and the police seizure of the keys from his person flows directly from the illegal police conduct of turning the lock of the door of the target apartment, and looking inside the target apartment. Under these circumstances, the police seizure of the keys is a direct fruit of the illegal police conduct.

The record does not contain factual support for defendant's claims that he was the building superintendent and an invited guest of the resident of the target apartment. In the prior decision, this court noted that the police testimony about the keys recovered from defendant provided "some" corroboration of his omnibus motion claim that he was the building superintendent. But that testimony, standing alone, does not establish that defendant was, in fact, the building superintendent. Defendant had an opportunity to present additional evidence at the hearing to support his claim that he was the superintendent, but he declined to do so. And, as the original decision also noted, the record contains no evidence to substantiate defendant's allegation that he had been invited into the apartment by the resident. Consequently, this court finds that defendant failed to establish that he was the building superintendent and an invited [*2]guest.

This court also disagrees with defendant's argument that a building superintendent has the same expectation of privacy in the dwelling of a resident that a corporate officer or employee has in a commercial premises. The comparison is inapt. A building superintendent does not exercise any managerial or supervisory responsibility over an apartment in a residential building (cf. People v Johnson, 209 AD2d 721, 721 [2d Dept 1994]). The superintendent may possess a key to the apartment, but possession of the key does not grant the superintendent any right to exclude others from entering the apartment; that right belongs to the resident. The superintendent possesses a key solely for the convenience of free and easy access to the apartment after the resident has given consent for the superintendent to enter to perform superintendent duties. Nor can the resident's apartment be considered the functional equivalent of the superintendent's personal desk or workplace (cf. People v Herman, 144 AD2d 485, 487 [2d Dept 1988]). A building superintendent has no legitimate expectation of privacy in the apartment of a building resident.

Defendant's request for a hearing on the standing issue is denied. As noted already, defendant had an opportunity to present evidence at the hearing to establish standing, but he declined to avail himself of that opportunity. Defendant gives no reason for why he should be given a second opportunity to present such evidence.

This court has also reinspected the Grand Jury minutes to determine whether the prosecutor properly explained the legal principle of constructive possession and the statutory room presumption in Penal Law 220.25 (2). The minutes disclose that the prosecutor appropriately explained the concept of constructive possession. The prosecutor, however, did not instruct the Grand Jury on the statutory room presumption. The evidence presented to the Grand Jury was sufficient to support the charges contained in the indictment, and the prosecutor's legal instructions were correct and not misleading.

Accordingly, the motion to reargue is granted to the extent of ordering suppression of the keys recovered from defendant Green's person. In all other respects, this court adheres to its prior decision denying the motion to suppress.

Dated: August 11, 2008

J.