People v Dedes

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[*1] People v Dedes 2015 NY Slip Op 51741(U) Decided on November 12, 2015 Criminal Court Of The City Of New York, Kings County Douglas, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 12, 2015
Criminal Court of the City of New York, Kings County

The People of the State of New York

against

Christos Dedes, Defendant.



2015KN041513



Kenneth P. Thompson, District Attorney, Kings County, (ADA Jonathan I. Smith) for the People

Legal Aid Society (Thomas E. Nixon Friedman, Esq.), for Defendant
Dena E. Douglas, J.

Defendant Christos Dedes is charged with criminal possession of a controlled substance in the seventh degree (PL § 220.03). Defendant seeks to suppress five (5) glassine envelopes containing heroin that were discovered during a traffic stop of a vehicle in which defendant was traveling as a passenger, on the basis that observation of the glassine envelopes within the vehicle was the result of an unlawful search. Defendant argues that the police did not have probable cause to search the vehicle, thus making the glassines inadmissible as "fruit of the poisonous tree." (People v Dunaway 442 US 200 [1979], Mapp v Ohio, 367 US 643 [1961]). The People oppose defendant's motion and argue that defendant does not have standing to challenge the traffic stop or the search of the vehicle in which the controlled substance was discovered, because as a mere passenger, he had no expectation of privacy.

A combined Dunaway/Mapp/Huntley hearing was conducted before the court in on October 8 and 9, 2015, after which the parties were directed to submit memoranda regarding the two principal issues: a) whether the Police had probable cause to search the vehicle, and b) whether defendant has standing to move for suppression of the contraband found under the passenger seat of the vehicle.

The court has reviewed the defendant's moving papers, the People's response, relevant statutes and case law, and for the reasons discussed hereafter, [*2]denies the defendant's motion.



FACTUAL SUMMARY

The parties do not dispute that Police Officer Stephen Sheppard testified during the hearing that he stopped the vehicle in which defendant was a passenger because the driver of the vehicle made a left turn at a site marked "No Left Turn". Officer Sheppard testified that he, while speaking with the driver, leaned into the vehicle and shone his flashlight therein, whereupon he observed two glassine envelopes containing heroin residue on the floor of the vehicle, on the driver's side floorboard. Officer Sheppard then searched the vehicle, finding five (5) glassines of heroin in a cigarette box under the front passenger seat, where defendant had been previously seated. The occupants were then arrested for possession of heroin. Officer Sheppard testified that the two glassines envelopes containing residue that were allegedly observed on the driver's side floorboard were not vouchered and were "thrown away".



STANDING

The invocation of the right to be secure against unreasonable searches and seizures (NY Const, art I, § 12; US Const 4th and 14th Amendments) and its exclusionary enforcement (Weeks v United States, 232 U.S. 383; Mapp v Ohio, 367 U.S. 643) require personal standing to challenge governmental action. There is no legal basis for suppression unless the accused alleges facts that, if true, demonstrate that defendant has standing to challenge the aforementioned search or seizure. (See People v Rodriguez, 69 NY2d 159, 161, [1987].) A defendant seeking suppression of evidence has the burden of establishing standing by demonstrating a legitimate expectation of privacy in the premises or object searched (People v Ramirez-Portoreal, 88 NY2d 99 [1996]).

The test regarding whether defendant has a legitimate expectation of privacy has two components. The first is a subjective component—did defendant exhibit an expectation of privacy in the place or item searched, that is, did he seek to preserve something as private (see, Smith v Maryland, 442 US 735, 740[1979]; People v Bowden, 27 Misc 3d 1226[A][Sup Ct, Bronx Co, 2010]). The second component is objective—does society generally recognize defendant's expectation of privacy as reasonable, that is, is his expectation of privacy justifiable under the circumstances (see, id., at 740-741; see, e.g., People v Mercado, 68 NY2d 874, 876, cert denied 479 US 1095).

Here, defendant makes no argument regarding his standing to move for suppression of the physical evidence. The standing requirement is satisfied where the accused manifests an expectation of privacy with respect to the location or item searched that society recognizes to be objectively reasonable under the circumstances (People v. Burton, 6 NY3d 584, 587-88 [2006]). In fact, however, defendant was noticed, pursuant to CPL § 710.30, as expressly denying ownership of the drugs discovered under the front passenger seat. Additionally, the People correctly allege that defendant does not enjoy automatic standing since he is not charged under the statutory presumption described in Penal Law § 220.25. However, under constructive possession, the People now bear the substantial burden of establishing defendant's ability and [*3]intent to exercise dominion and control over the contraband. People v Wesley, 73 NY2d 351, 361-62 (1989).

Defendant has not established standing to exercise the right to move for suppression of physical evidence. Because defendant does not have standing to move for suppression the court does not reach the question of whether there was probable cause to search the vehicle in question.

In our view, however, under the facts as testified to by the arresting officer, and with a reasonable view of the evidence offered, there was no predicate for the search of the vehicle. Officer Sheppard's testimony that he conducted a further search of the vehicle based on having seen two glassines containing heroin residue on the floorboard near the driver is incredible, especially in that he did not report the existence of these glassines in his paperwork and he did not voucher the glassines, but alleges instead that he threw them away. The plain view doctrine is also inapposite here, as Officer Sheppard made his observation of the alleged contraband by leaning into the vehicle and shining a flashlight around, thus constituting a search. People v. Young, 207 A.D.2d 465, 465-66, (2nd Dept.,1994)



CONCLUSION

Defendant lacks standing to file a motion to suppress evidence and his motion to suppress is denied.



Dated: November 12, 2015____________________

Brooklyn, NYDena E. Douglas



Judge of the Civil Court

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