People v. Holmes

• Decision Date: 30 December 2010
• Citation: 79 A.D.3d 1681,913 N.Y.S.2d 480
• Parties: The PEOPLE of the State of New York, Respondent, v. Willie HOLMES, Jr., Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

913 N.Y.S.2d 480
79 A.D.3d 1681

The PEOPLE of the State of New York, Respondent,
v.
Willie HOLMES, Jr., Defendant-Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Dec. 30, 2010.

913 N.Y.S.2d 480

Appeal from a judgment of the Supreme Court, Monroe County (

913 N.Y.S.2d 481

Joseph D. Valentino, J.), rendered September 25, 2007. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree.

Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of Counsel), for Defendant-Appellant.

Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of Counsel), for Respondent.

PRESENT: SMITH, J.P., CENTRA, FAHEY, PERADOTTO, AND PINE, JJ.

MEMORANDUM:

79 A.D.3d 1681

On appeal from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree (Penal Law § 265.03 [former (3) ] ), defendant contends that Supreme Court erred in refusing to suppress the weapon and his statements to the police. We reject that contention. The police found the weapon in a duffel bag in the bedroom closet of defendant's girlfriend during a search of the house co-leased by defendant's girlfriend and her mother. Defendant resided in the bedroom part of the time and kept personal items there. We note at the outset that, " [b]ecause defendant has the burden to allege facts sufficient to warrant suppression, the People are not precluded from raising the issue of standing for the first time on appeal" ( People v. Hooper, 245 A.D.2d 1020, 1021, 667 N.Y.S.2d 575; see People v. McCall, 51 A.D.3d 822, 860 N.Y.S.2d 539, lv. denied 11 N.Y.3d 856, 872 N.Y.S.2d 79, 900 N.E.2d 562). The People contest the standing of defendant to challenge the search of the duffel bag only, thereby conceding that he had a legitimate expectation of privacy in the bedroom ( see generally People v. Gonzalez, 88 N.Y.2d 289, 292-293, 644 N.Y.S.2d 673, 667 N.E.2d 323). We agree with the People that defendant failed to establish a legitimate expectation of privacy in the duffel bag or its contents inasmuch as no evidence was presented establishing his ownership of the bag ( see generally

79 A.D.3d 1682

People v. Whitfield, 81 N.Y.2d 904, 905-906, 597 N.Y.S.2d 641, 613 N.E.2d 547; People v. Clark, 28 A.D.3d 1231, 1232, 813 N.Y.S.2d 617; People v. Gatti, 277 A.D.2d 1041, 1042, 716 N.Y.S.2d 182, lv. denied 96 N.Y.2d 783, 725 N.Y.S.2d 647, 749 N.E.2d 216). We therefore consider the propriety of the...