People v. Stojek
| Decision Date | 21 May 1970 |
| Citation | 310 N.Y.S.2d 965,34 A.D.2d 205 |
| Parties | PEOPLE of the State of New York, Respondent, v. Joseph STOJEK, Appellant. PEOPLE of the State of New York, Respondent, v. Robert KOPEC, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Michael F. Dillon, Dist. Atty., Buffalo, for respondent (M. Dolores Denman, Buffalo, of counsel).
Before DEL VECCHIO, J.P., and MARSH, GABRIELLI, MOULE and BASTOW, JJ.
DEL VECCHIO, Justice Presiding.
The appellants, Robert Kopec and Joseph Stojek, and Guy Zelakowski, a co-defendant not involved in this appeal, were indicted and charged with burglary third degree, grand larceny second degree and possession of burglar's instruments. After a jury trial each was convicted of burglary third degree and petit larceny.
It is undisputed that on December 13, 1966, between 10:30 a.m. and about noon a dwelling in the City of Buffalo was entered and certain jewelry and cash taken. A witness who lived across the street testified that at about 10:30 a.m. she saw a light brown four-door car stop in front of the burglarized house; that while a woman remained sitting in the car she saw the defendants Kopec and Zelakowski, whom she had known for several years, enter the house with a third person whom she did not know at the time; that shortly after the three men had entered the house Zelakowski came out, went to the car and after a few seconds reentered the house. Later she saw the three men come out, enter the car and drive off with defendant Kopec driving. The next day she identified the defendants as the persons who had entered the house. Thereafter informations were laid against them in City Court.
The trial evidence also disclosed that at about noon on the day of the burglary a 1958 Cadillac sedan was stopped for making an illegal left turn. Kopec, the driver, was unable to produce a driver's license or certificate of registration. The officer observed a hammer, an electric drill, a screw driver and a tool box in the car and, being suspicious that it was a stolen car, took the driver and occupants, Guy Zelakowski, Nancy Burgess and Nick Conoglio, to police headquarters for investigation. While at headquarters Nancy Burgess was asked to empty her purse; she did so and among the contents were two rings belonging to the victim of the burglary. These rings were received in evidence over objection that they were seized as a result of an unlawful search. Miss Burgess did not testify at the trial and the defendants rested at the close of the People's case.
The dissenting justice concedes that the evidence received at the trial was ample to warrant the verdict. He would reverse, however, on the sole ground that the motion made by the defendants to suppress the two rings found in the possession of Nancy Burgess should have been granted and that they should not have been received in evidence at the trial. She was not indicted as an accomplice and was not a party to the motion to suppress the items of jewelry.
It appears from the testimony given at the suppression hearing held in October 1967 that at about noon on the day of the burglary an officer observed a four-door 1958 Cadillac sedan in front of his car stopped for a red light, saw a big fellow, identified as defendant Stojek, get out and then the car made an illegal left turn. The car was stopped and the driver's license and registration requested from the operator Kopec, who was unable to produce them. The officer, having observed an assortment of hammers, drill and screw drivers on the floor, became suspicious that the car had been stolen and took the occupants to headquarters for investigation. While checking out the license number of the car he learned from a telephone conversation that the detectives were investigating a burglary. He was asked whether the persons he had brought in had any rings in their possession. The men had already removed their belongings from their persons and put them on the desk; no rings were among them. He then asked the girl (Nancy Burgess), who was sitting in his office, to empty her purse; she did so, and among the contents were some rings and jewelry. Two of the rings were identified that afternoon by the victim of the burglary. There was no proof offered either at the suppression hearing or at the trial identifying Miss Burgess as the woman observed sitting in the car outside the burglary site.
We conclude that defendants had no standing to challenge the search and seizure of the rings which were in the possession of Miss Burgess. Their property was not seized and they, therefore, were not the victims of the search, nor persons against whom the seach was directed. They cannot be heard to complain of the violation of the constitutional rights of another.
Section 810--c of the Code of Criminal Procedure provides in part: 'A person claiming to be aggrieved by an unlawful search and seizure * * * may move for the return of such property or for the suppression of its use as evidence.' As the dissent concedes, the Supreme Court, in Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 731, 4 L.Ed.2d 697, has pointed out that in order to be a person aggrieved 'one must have been the victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else.' In the present case, no search was directed at the defendants; they merely stand as persons now claiming prejudice through the use of evidence gathered by the search addressed to the person of Miss Burgess. In these circumstances they do not qualify as persons entitled to challenge the propriety of the search, which Miss Burgess herself has not attacked. The rights against unreasonable searches and seizures secured by the Fourth Amendment are personal rights, which may be enforced by exclusion of evidence only at the instance of one whose own protection was infringed by the search and seizure. (Simmons v. United States, 390 U.S. 377, 389, 88 S.Ct. 967, 19 L.Ed.2d 1247; People v. Cardaio, 30 A.D.2d 843, 294 N.Y.S.2d 579.)
In United States ex rel. Coffey v. Fay, 2 Cir., 344 F.2d 625, quoted and relied on by the dissent, the question of standing was academic, since it was there concluded that the petitioner's Fourth Amendment rights had not been violated because the evidence had been seized in the course of a search incident to an arrest upon probable cause. (See United States ex rel. Coffey v. Fay, 2 Cir., 356 F.2d 460.) It may also be observed that in Fay the arrest was triggered by information that Coffey had possession of the proceeds of the burglary and the search and prosecution was on the theory that defendant was in possession of the stolen property, whereas in our case the police had no information that defendants had possession of the proceeds of the burglary. Furthermore they were not prosecuted for burglary as a result of the discovert of the stolen rings, but as the result of the identification of defendants as the men who had entered the burglarized premises.
Although the rings may have been unlawfully seized from Miss Burgess and might not have been admissible against her, it does not follow from this that they were not admissible against defendants. The seizure of the rings invaded no right of privacy of the persons of the defendants which would entitle them to object to their use at the trial.
In Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176, the Supreme Court reaffirmed the general rule that Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted, and said:
(supra at 171--172, 89 S.Ct. at 965.)
In People v. Estrada, 23 N.Y.2d 719, 296 N.Y.S.2d 364, 244 N.E.2d 57, the court affirmed a denial of a motion to suppress upon the ground that the movant, charged with possession and sale of narcotics, was not a person 'aggrieved' with standing to challenge seizure of the narcotics (the only tangible evidence to be offered against him) from another person. This was so even though the actual possessor had himself been successful in obtaining suppression of the evidence as to himself.
The judgments of conviction should be affirmed.
Judgments affirmed.
MARSH, J., dissents in a separate Opinion.
A serious question is presented as to the legality of a search resulting in the seizure of two rings in the possession of one Nancy Burgess apprehended by the police while in the company of defendants shortly after the commission of the burglary charged. The seizure of the rings as the result of the forced emptying of the handbag of defendants' female companion and their identification by the victims of the burglary as property taken from their home provided an essential link in the People's circumstantial proof of defendants' participation in the crimes charged. The arresting officer,...
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