People v. Ayers
| Decision Date | 20 April 1995 |
| Citation | 625 N.Y.S.2d 206,214 A.D.2d 459 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Michael AYERS, a/k/a Ernest Stokes, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
R.M. Raciti, for respondent.
J. Garelick, for defendant-appellant.
Before SULLIVAN, J.P., and ELLERIN, WALLACH, ASCH and WILLIAMS, JJ.
Judgment, Supreme Court, New York County (Rose Rubin, J.), rendered January 31, 1991, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third and fourth degrees, and sentencing him, as a second felony offender, to concurrent terms of 4 1/2 to 9 years, and also convicting him, upon his plea of guilty, of violation of probation, and resentencing him on his previous conviction to a concurrent term of 1 to 3 years, unanimously affirmed.
Defendant's motion to suppress physical evidence was properly denied. There was no evidence that defendant had any reasonable expectation of privacy in the abandoned, vacant apartment, and the doctrine of "automatic standing" was inapplicable because the People adequately, although inartfully, apprised the hearing court of their intention to rely on ordinary constructive possession in addition to the "room presumption" of Penal Law § 220.25(2) (People v. Tejada, 81 N.Y.2d 861, 863, 597 N.Y.S.2d 626, 613 N.E.2d 532).
The court did not abuse its discretion in denying the drastic remedy of an immediate mistrial (People v. Rice, 75 N.Y.2d 929, 932, 555 N.Y.S.2d 677, 554 N.E.2d 1265; see also, People v. Santiago, 52 N.Y.2d 865, 866, 437 N.Y.S.2d 75, 418 N.E.2d 668), the only remedy requested by defendant, when evidence of premature deliberations arose. While we agree with defendant that the court's replacement of a particular juror did not necessarily address the possibility of premature deliberations by other jurors, nevertheless, defendant, having spurned the suggestion that the remaining jurors be interviewed, was not entitled to a mistrial.
The prosecutor's comment on defendant's failure to call his former codefendant as a witness was improper (People v. De Jesus, 42 N.Y.2d 519, 525, 399 N.Y.S.2d 196, 369 N.E.2d 752), but could not have prejudiced defendant in view of the overwhelming evidence of guilt.
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... ... Defendant had a couch, a television, a space heater, dishes, ashtrays, bags of clothing and other items in the garage. The court found that the garage was never built for habitation and refused to extend the Payton protection from warrantless arrest to the garage. The court in People v. Ayers, 214 A.D.2d 459, 625 N.Y.S.2d 206 (1st Dept., 1995), app.den., 86 N.Y.2d 732, 631 N.Y.S.2d 612, 655 N.E.2d 709 (1995), decided that the defendant, who was arrested on drug charges, did not have a reasonable expectation of privacy in an abandoned apartment ... Courts in other states ... ...
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... ... Even if further inquiries of the remaining jurors would have been appropriate, defense counsel expressly declined that remedy (see People v. Ayers, 214 A.D.2d 459, 625 N.Y.S.2d 206 [1st Dept.1995], lv. denied 86 N.Y.2d 732, 631 N.Y.S.2d 612, 655 N.E.2d 709 [1995] ). The motion court's pretrial ruling, issued on July 23, 2013, denying defendant's motion to exclude, or alternatively to conduct a Frye(Frye v. United States, 293 F. 1013 [D.C ... ...