People v. Rosenthal
| Decision Date | 12 May 1969 |
| Citation | 59 Misc.2d 565,299 N.Y.S.2d 960 |
| Parties | PEOPLE of the State of New York, Plaintiff, v. LLOYD ROSENTHAL, as Executor and Trustee of the Estate of Rose Rosenthal, Deceased, Defendant. |
| Court | New York City Court |
Defendant, as executor and trustee of the Estate of Rose Rosenthal, deceased, is the owner of an apartment building in the City of Poughkeepsie. The Information herein charges that the structure is a 'danger and hazard to the hearlth, safety, morals and welfare of the occupants or the public' an alleged violation of the Minimum Housing Standards Ordinance, Code of Ordinances, City of Poughkeepsie.
Three specific instances of disrepair are before the Court: first, an allegedly deteriorated roof of a garage, an accessory structure; second, allegedly deteriorated porches, not in good repair and with rotting due to leaking roofs; third, walls of the building are alleged to be structurally unsound 'in that' plaster in a second floor bathroom and in the front and rear halls is cracked.
The Information declares the source of the Peoples' knowledge of defects as a series of inspection over a period in excess of eight months. Defendant herein moves to suppress the evidence thus discovered, alleging that the inspections were made in violation of his right against unreasonable searches as provided in Amendment Four of the United States Constitution and Article One, Section Twelve of the New York State Constitution.
After considerable research by the Court and analysis of the exhaustive briefs presented by both counsel, the Court concludes that the various items sought to be suppressed present distinct and separate matters of law. They will be discussed below.
The initial issue presented by the prosecution is the matter of defendant's standing to move for suppression of the evidence. It is undisputed that defendant is not a resident of the premises in question. The People assert that the traditional rule is such that an absentee landlord lacks standing to complain of searches in structures owned by him and leased to others. In support thereof, the cases of Thomas v. United States, 154 F.2d 365, Curry v. United States, 192 F.2d 571, and Schnitzer v. United States, 77 F.2d 233, are cited.
The outstanding hour in the history of 'standing' to move for suppression was the Prohibition era. The great body of law that supports the view of the People herein stems from searches of 'stills' after which owners of property in which the 'still' operated were prosecuted together with the entrepreneurs. There arose a general rule therefrom which is stated as follows:
An owner of the premises searched who is not in possession thereof, such as a lessor or sublessor, has no standing to raise objections as to the legality of the search and seizure. Ann. 78 A.L.R.2d 246, 255--256, citing at p. 256. Hardwig v. United States, 6 Cir., 23 F.2d 922 and Schnitzer v. United States, supra.
In light of this 'rule', the most difficult area under consideration is that of the standing, or lack thereof, of defendant with regard to the search of the bathroom ceiling in one of the leased apartments. A reading of the above stated 'rule', without more, would easily dispose of the motion in this regard. However, the stringencies in the concept of 'standing' commenced to erode in 1960 with the United States Supreme Court decision in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697. It was there recognized that where a defendant was accused of possession narcotics or other contraband, he was faced with an unconscionable dilemma. He must deny possession, which is consistent with a plea of not guilty, and, concurrently, assert a possessory interest in the contraband so as to have standing to move for suppression. In Jones, the Court relieved defendants in contraband cases of this difficult choice. The ruling in Jones, then, relaxes the traditional requirements. In 1962 in the then Kings County Court, New York, the court in People v. Smith, 35 Misc.2d 533, 230 N.Y.S.2d 894, expanded the Jones decision.
Taking cognizance of the broad verbage in section 813-c, Code of Criminal Procedure, the Smith court attempted to accomplish two things. First, it declared that in New York, the law would henceforth be that categorization of the evidence as 'contraband' or 'fruits' of a search, will no longer be determinative of standing. Second, it purports to give standing to anyone against whom seized evidence may be used. Presumably, this includes absentee landlords.
The Smith decision has been subsequently analyzed, dissected, ignored in part and followed in part. See, for example, People v. Cafaro, 45 Misc.2d 990, 258 N.Y.S.2d 289, affirmed without opinion, 28 A.D.2d 694, 282 N.Y.S.2d 668, affirmed 21 N.Y.2d 252, 287 N.Y.S.2d 371, 234 N.E.2d 423; People v. Manzi, 38 Misc.2d 114, 118, 237 N.Y.S.2d 738, 742; People v. Kramer, 38 Misc.2d 889, 893, 239 N.Y.S.2d 303, 307.
From the subsequent amplification of the Smith doctrine, the conclusion is to be derived that the statutory wording in New York is broad on the issue of standing, but is still subject to analysis from the standpoint of the status of the movant. In other words, it remains the law that not every defendant possesses standing.
The Court's research in the case at bar discloses no precedent encompassing the facts herein. It is a certainty, however, that the relatively new (1962) New York Statute is sufficiently broad to relegate into obsolescence the concept that an otherwise illegal search may not be attacked because the premises searched is not defendant's home or 'curtilage.' (That this may also be the current Federal rule is discussed below in connection with Katz v. United States, 389 U.S. 347, 349, 88 S.Ct. 507, 19 L.Ed.2d 576.)
Having thus decided, the effect on defendant's standing of the status of the property as a leasehold, must be considered.
In each and every case found by the Court which denies a landlord standing to object to a search of leased premises, the evidence is a chattel which does or could belong to a tenant. It is the privacy of the tenant that is thus invaded. Therefore, the landlord has traditionally been precluded from moving for suppression. We are faced in the instant case with either denying defendant standing merely because the alleged structural defect exists within a leased area or acknowledging his status to so move as the Court would be required to do if defendant himself occupied the premises. In other words, the issue is whether the interest in the walls and ceiling of a building are any less personal to the owner because someone else presently possesses a tenancy.
The most definitive support for the immateriality of the area involved is found in the 1967 United States Supreme Court decision of Stewart, J., in Katz v. United States, 389 U.S., supra, at 351, 352, 88 S.Ct. at 511.
'* * * the parties have attached great significance to the characterization of the telephone booth from which the petitioner placed his calls. The petitioner has strenuously argued that the booth was a 'constitutionally protected area.' The...
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...512 N.Y.S.2d 753; Matter of Department of Housing Preservation & Dev. [Cohen], 128 Misc.2d 351, 489 N.Y.S.2d 979; cf. People v. Rosenthal, 59 Misc.2d 565, 299 N.Y.S.2d 960). The statutes at issue here do not specifically authorize application to the court for a warrant. There is authority h......
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...it is not a search to observe that which is open to view. (People v. Exum, 382 Ill. 204, 210, 47 N.E.2d 56).' People v. Rosenthal, 59 Misc.2d 565, 569--570, 299 N.Y.S.2d 960, 964. Any doubt as to the propriety of derivative evidence would seem to be best resolved by the manner in which the ......