People v. Rada

• Decision Date: 14 September 1988
• Citation: 532 N.Y.S.2d 973,141 Misc.2d 218
• Parties: The PEOPLE of the State of New York v. William RADA, Defendant.
• Court: New York Supreme Court

Page 973

532 N.Y.S.2d 973

141 Misc.2d 218

The PEOPLE of the State of New York v. William RADA, Defendant.

Supreme Court, New York County IAS Part 74.

Sept. 14, 1988.

Martin M. Marshak, Brooklyn, for defendant.

Sterling Johnson, Jr., Sp. Prosecutor (David Molton, New York City, of counsel), for plaintiff.

EDWARD J. McLAUGHLIN, Justice:

Defendant has moved to suppress narcotics ¹ found in his codefendant girlfriend's hotel room while he was present there with her on November 24, 1987. The People seek to justify the warrantless search based on his codefendant's consent and upon exigent circumstances. For the following reasons, the court declines to reach the merits of either of those issues and holds, instead, that defendant lacks the requisite standing to move to suppress.

A Mapp hearing was held on July 26 and 28, 1988. Three witnesses, State Police Investigators Santos Castro, Juan Inclan, and James McDowell, testified for the People. Defendant Rada testified for the defense. Ruth Bohrer, Rada's codefendant, was also called for the defense, but she asserted her privilege against self-incrimination and accordingly refused to testify. Bohrer had entered a plea of guilty to criminal possession of a controlled substance in the second degree (Penal Law § 220.18) and is awaiting sentence. For the purpose of the hearing, the court credits the testimony of all the witness.

THE FACTS

The facts on which the court relies are as follows.

On November 24, 1987, following a sale of narcotics occurring on November 9, 1987, in the Henry Hudson Motel, 353 West 57th Street, Room 1417, in Manhattan as well as additional negotiations taking place on November 23, Investigator Castro, in an undercover capacity, went to Room 1417 of the motel to purchase another five kilograms of cocaine from Marlene Sierra.

Sierra told him that while two of the kilograms were in Room 1417, the remainder was elsewhere. The police, having decided to wait no longer, arrested Sierra, seized the two kilograms, and pressed her as to where exactly the other three kilograms were. Sierra eventually told the police that the balance of the shipment was in the laundry hamper of Room 1401.

When the police entered Room 1401, they found Ruth Bohrer, to whom the motel room was registered, and defendant Rada. A security sweep was done, some traces of cocaine were found on a dresser, and Rada was patted down. Bohrer signed a form consenting to a search of the room, and a thorough search uncovered two kilograms of cocaine in the hamper, another kilogram in a gym bag, a strainer and a black plastic vial containing cocaine on the dresser.

Rada testified that Bohrer was a girlfriend and that he had slept with her in her motel room about ten times over an undisclosed but seemingly extensive period of time, that he never left his belongings there, and that he never paid any rent. Rada also testified that it was not his gym bag and that he did not bring it into the room with him. In the People's response to defendant's omnibus motion, however, the People stated that the gym bag belonged to Rada.

THE LAW

The present state of the law of standing appears to be in flux and is the subject of much debate. With regard to one of the standing issues presented herein, for example, other courts that have recently considered the matter have adopted a view that differs from this court's position.

Defendant could have obtained standing to contest at least part of the seizure of the narcotics on the proper assertion of any one of the following four grounds. None of the grounds offers defendant standing, however, and defendant's motion to suppress must therefore be denied.

First, a statement by an Assistant District Attorney that a defendant was observed to have physically possessed an item is a sufficient basis on which a defendant may claim standing to suppress it (People v. Sutton, 91 A.D.2d 522, 456 N.Y.S.2d 771; People v. Taylor, 97 A.D.2d 381, 467 N.Y.S.2d 590). The conclusory remark in the People's response to defendant's omnibus motion that the gym bag was Rada's is not, however, the kind of allegation contemplated by Sutton that would obviate the requirement that a defendant himself admit to possessing contraband or to having a possessory interest in the bag (see, People v. Gomez, 67 N.Y.2d 843, 844, 501 N.Y.S.2d 650, 492 N.E.2d 778 [which holds that an allegation by the People in a felony complaint that evidence is found "in defendant's apartment" does not relieve a defendant from alleging a further possessory interest]). At no time in the People's response or during the hearing did any law enforcement official attribute to Rada the direct, physical possession of the bag. Even defendant, who testified at the hearing, denied ever possessing the bag (cf. People v. Barshai, 100 A.D.2d 253, 256-257, 474 N.Y.S.2d 288).

Second, a defendant may obtain automatic standing if an allegation of possession is founded entirely on a statutory presumption (People v. Millan, 69 N.Y.2d 514, 516 N.Y.S.2d 168, 508 N.E.2d 903), such as the room presumption (Penal Law § 220.25). That presumption plays no role, however, let alone the sole role, in the People's case against Rada.

Third, a defendant is entitled to challenge the basis of the arrest of another person when that arrest leads directly to the obtaining of tangible or intangible evidence (i.e., a seizure of physical evidence, the taking of statements, an appearance in an identification procedure, etc.) from the defendant ( People v. Mosley, 68 N.Y.2d 881, 883, 508 N.Y.S.2d 931, 501 N.E.2d 580, rearg. denied 69 N.Y.2d 707, 512 N.Y.S.2d 1031, 504 N.E.2d 399, cert. denied 482 U.S. 914, 107 S.Ct. 3185, 96 L.Ed.2d 673 [1987] ).

This court specifically disagrees with any interpretation of Mosley that would give joint standing to a defendant who is charged with constructively possessing contraband with a codefendant who has standing (see, People v. Wesley, 139 A.D.2d 946, 527 N.Y.S.2d 926; People v. Williams, 140 Misc.2d 741, 531 N.Y.S.2d 852 [Sup.Ct., Kings County]; People v. Pagan, 138 Misc.2d 802, 525 N.Y.S.2d 477; and People v. Ycasa, 140 Misc.2d 114, 531 N.Y.S.2d 183 [Crim.Ct., NY County] ). Moreover, the court is not inclined to grant automatic standing even when the accusation of constructive possession is founded upon the actual physical possession of contraband by a codefendant (see, People v. Febus, --- N.Y.S.2d ---- [Sup Ct., NY County] ), a fact that existed neither in Febus nor in the case at bar.

The court believes that Mosley stands only for the basic proposition, enunciated authoritatively in Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824, and Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, that an individual may contest the foundations or building blocks that led to the poisoned fruit that the People intend to proffer as evidence at trial, such as contraband, statements, or identification testimony. Mosely himself, after all, apparently was never prosecuted for anything related to the possession of Mackie's starter pistol. Mosely never sought to suppress the starter pistol. Mosely moved to suppress the .22 caliber pistol found on his person. To do so, Mosely challenged the pretext for his arrest, which was the unprosecuted constructive possession of Mackie's starter pistol. According to my analysis, had Mosely been prosecuted for possessing the starter's pistol, he would not have had standing.

The cases cited above--Wesley, Williams, Pagan, Ycasa, and Febus--would hold that Mosely had standing to suppress Mackie's starter pistol if he...