People v. Hunter

• Decision Date: 02 June 2011
• Parties: The PEOPLE of the State of New York, Respondent,v.Shawn HUNTER, Appellant.
• Court: New York Court of Appeals Court of Appeals

17 N.Y.3d 725

950 N.E.2d 137

926 N.Y.S.2d 401

2011 N.Y. Slip Op. 04542

The PEOPLE of the State of New York, Respondent,

v.Shawn HUNTER, Appellant.

Court of Appeals of New York.

June 2, 2011.

OPINION TEXT STARTS HERE Timothy P. Donaher, Public Defender, Rochester (Matthew J. Clark of counsel), for appellant.Michael C. Green, District Attorney, Rochester (Joseph D. Waldorf of counsel), for respondent.

OPINION OF THE COURTMEMORANDUM.

The order of the Appellate Division should be reversed and the matter remitted to that court for consideration of issues raised but not determined on the appeal to that court.

It is well settled that a defendant seeking suppression of evidence obtained

[950 N.E.2d 138 , 926 N.Y.S.2d 402]

as the result of an alleged illegal search must prove standing to challenge the search (see People v. Ramirez–Portoreal, 88 N.Y.2d 99, 108, 643 N.Y.S.2d 502, 666 N.E.2d 207 [1996] ). At issue in this appeal is the related question of whether the People must timely object to a defendant's failure to prove standing in order to preserve that issue for appellate review. We previously answered this question in the affirmative in People v. Stith, 69 N.Y.2d 313, 514 N.Y.S.2d 201, 506 N.E.2d 911 (1987), and reiterate that holding today.

In October 2005, officers effected a warrantless entry into an apartment, apprehended defendant and recovered buy money from a “buy and bust” transaction that defendant had engaged in with an undercover officer. Defendant moved to suppress the buy money, claiming that it was obtained as the result of an unlawful warrantless entry and search of his home. The People countered that the entry was justified under the doctrines of “exigent circumstances” and/or “hot pursuit.” They also contended that the search of the apartment was supported by the written consent of the tenant, defendant's mother.

At the suppression hearing, the People called two police officers who were engaged in the pursuit; defendant called no witnesses. Supreme Court denied defendant's motion to suppress, upholding the warrantless entry based upon the “exigent circumstances” and “hot pursuit” exceptions to the warrant requirement. Since the issue of defendant's standing was not raised, the court had no occasion to rule on that issue.

Defendant then pleaded guilty to criminal possession and sale of a controlled substance in the third degree and promptly appealed his conviction arguing that Supreme Court erred in its suppression ruling. The Appellate Division affirmed the conviction, albeit on a ground that had not been presented to the suppression court, holding that defendant “failed to establish that he had standing to challenge the search of the apartment in which he was arrested” (70 A.D.3d 1343, 1344, 894 N.Y.S.2d 711 [4th Dept.2010] ). In light of that determination, the court declined to consider defendant's remaining arguments. A Judge of this Court granted defendant leave to appeal and we now reverse.

In People v. Stith, this Court refused to consider the People's argument that the defendant lacked standing to challenge the legality of the seizure of a weapon, noting that such argument “was raised for the first time at the Appellate Division and thus is not preserved for our review” (69 N.Y.2d at 320, 514 N.Y.S.2d 201, 506 N.E.2d 911). Since our pronouncement in Stith, however, three of the four appellate departments have issued rulings counter to this holding, concluding that because it is the defendant's initial burden to establish standing, the People may raise defendant's lack of standing for the first time on appeal ( see People v. McCall, 51 A.D.3d 822, 822, 860 N.Y.S.2d 539 [2d Dept.2008], lv. denied 11 N.Y.3d 856, 872 N.Y.S.2d 79, 900 N.E.2d 562 [2008]; People v. Hooper, 245 A.D.2d 1020, 1021, 667 N.Y.S.2d 575 [4th Dept.1997]; People v. Banks, 202 A.D.2d 902, 904, 609 N.Y.S.2d 420 [3d Dept.1994], rev'd on other grounds 85 N.Y.2d 558, 626 N.Y.S.2d 986, 650 N.E.2d 833 [1995]; but see People v. Graham, 211 A.D.2d 55, 57–58, 626 N.Y.S.2d 95 [1st Dept.1995], lv. denied 86 N.Y.2d 795, 632 N.Y.S.2d 508, 656 N.E.2d 607 [1995] [finding unpreserved the People's contention that the defendant lacked standing to challenge a search, noting that the People failed to raise the issue in either their motion opposing suppression or at the hearing] )....