People v. Gordon
| Decision Date | 12 June 1985 |
| Citation | 492 N.Y.S.2d 654,128 Misc.2d 1030 |
| Parties | PEOPLE of the State of New York v. Herbert GORDON. |
| Court | New York Supreme Court |
Peter Lesh, of Legal Aid Society, Brooklyn, for defendant.
Valentina Hosking, Brooklyn, for the Dist. Atty.
Elizabeth Holtzman, Brooklyn, for the County of Kings.
This court has found that the defendant, having moved on newly-found grounds to suppress property, has submitted a question not firmly settled by the cases of the State of New York. Defendant would create standing out of a statement of a police officer to the effect that the defendant was the employer, although the defendant denies being the employer and states not a scintilla to show a reasonable expectation of privacy to the "office," the place where the property was seized. Defendant's reliance upon People v. Sutton, 91 A.D.2d 522, 456 N.Y.S.2d 771 is misplaced when one reads it together with People v. Barshai 100 A.D.2d 253, 474 N.Y.S.2d 288; both First Department). Sutton, seemingly similar on its law pattern, states it must be read very carefully on its particular facts. Sutton and Barshai are two cases directly on point in the law, in a field apparently barren of others directly on point in any way. Therefore we believe our opinion below to manifest a case of first impression.
Defense's most ingenious theory is to conjure up creative standing by analogizing its legal theory to a recent case. It has interpolated one late case, which we will cite infra, and from that case it makes a quantum leap through a one line legalistic conclusion made by a police officer at a grand jury and uses it to create standing. This defendant has denied ownership and control of the area in which the property was found. The defendant has consistently affirmed that he is a mere employee. He has never in any way indicated a scintilla of right to be in the "office." He has denied that he is an employer in any sense of the word. Under defense's unique theory it would transvaluate this defendant's own denial, in that he has aggressively maintained that he has in effect no right to enter that office, into some sort of standing. The defense has seized upon a one liner of the police officer who has made a bald legal conclusion. On this one liner defense would misconstrue standing, and have us overcome his own aggressive affirmation that he is not an owner but an employee. He would have us believe that in that place, although not his office, he has some sort of reasonable expectation of privacy to the interior thereof. Although in one of his breaths he states that he has no right to be admitted or pass through or use this certain office, that because of this one line statement of the police officer he has new-found standing. The defendant denies ownership, denies any connection with the place. The conclusion by the officer is tenuous at best, a legalistic conclusion. Perhaps, in a different setting such may be finally definitive if backed up by a search by a title company. Yet the defense counselor would press us to believe that this creates a reasonable expectation of privacy in that office by the employee-defendant. By what right? It is unexplained as to how an employee who shows not a scintilla of right or access or need to be able to use, nor the ability to cross into an area, could in fact or in law begin to show any right to privacy to another person's office. The defense attempts to grow a right solely out of the bald, unproven, legalistic conclusion of a police officer. This may have been drawn from a previous remark of the same defendant, now totally denied by him.
This is tortured reasoning, a transvaluation of values that this court does not follow. That motion is therefore again denied on this reargument for all of the law and reasons that are elaborated upon, and upon the cases that are cited, which follow below.
Because the issue of standing looms large to both motions, the motion to controvert search warrant as well as to suppress evidence, let us elaborate firstly on the law and facts concerning standing. To support defense argument for standing, defense cites People v. Sutton, 91 A.D.2d 522, 456 N.Y.S.2d 771. Defense contends that the court in that case held that a defendant can rely on the police officer's version of the occurrence to provide standing in order for a hearing to be ordered on a motion to suppress. We disagree with that defense interpretation of that case's facts, as would affect the law in this case. In Sutton, the prosecution's affirmation noted that the police officer observed the defendant run and toss a gun away. We have no observation, nor such a like fact pattern in the case at bar. In Sutton, the police officer's version of the occurrence contends that the defendant was in fact, at one point, in possession of the gun. In Sutton, there was a diametric factual disagreement of the immediate hand held possession of a gun. There is no allegation, nor question of fact, whether or not this defendant was (a) ever seen in that office nor (b) ever tossed away the property in the case at bar. The defendant had standing in the Sutton case to challenge the propriety of the police conduct and the diametrically opposed fact pattern that concerned what had physically occurred at that particular case. That being the situation, the defense in the Sutton case affirmatively contends that he was minding his own business on that street at that same time and did nothing wrong, and had no gun. This creates an immediate question of fact in order to determine whether or not he had the gun on the public street at that same time. No such analogous question of fact is described in our case. At the case at bar, defendant contends he is not an owner. Physical presence in the instant case is not a finally determinative factor. The defendant in our case denies, in effect, making any such statement to the officer as alluded to by the officer. He was not in the office at the time of the search. It is not the same issue as saying, "I was minding my own business when the officer came along and I had no gun." The defendant at Sutton denies control or ownership of the gun, but he does not deny being at that public place at the date, time and place to which that officer had testified. Our defendant, however, denies any relevant connection whatsoever to that office, that could logically show an issue of an invasion of his privacy at that date, time and place. The defense now tries to advance past the Sutton argument to this case at bar based solely upon the grand jury testimony-remark. The defendant's reliance upon Sutton, supra, is misplaced since that case was a carefully limited decision turning on a particular set of facts. Please read People v. Hernandez, 124 Misc.2d 840, 479 N.Y.S.2d 105, wherein we agree that the public in the personification of a particular defendant at a definite place, and time, being disturbed in a public place of course had standing to complain upon an obvious intrusion into one's privacy for allegedly being searched for no good reason. The crux in the Sutton case was that the defendant was seized by police as he was walking down the street minding his own business. The First Appellate Division would not hold this case out for the proposition that automatic standing is back to allow hearings involving someone else's office. No, its proposition is that it is limited to its fact situation. Their fact situation was a common one which occurs to us in cases very often. Whenever a citizen states he was walking down a street, and minding his own business when seized illegally, and then searched, "for no good reason," he, of course, admits his presence at the scene and has the constitutional right and standing to complain. There is no comparison in the fact situation at Sutton at all to the case at bar. The First Appellate Division did not turn that case solely on one legalistic conclusion by a police officer denied by a defendant.
A case cited below, whose facts developed before Sutton but was written after Sutton is a very interesting case. Therefore, please read this People v. Barshai case (100 A.D.2d 253, 474 N.Y.S.2d 288 whereat Mr. Justice Sandler wrote, ...
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