The People submit application to this Court to preclude the defendant, Benjamin Volfson, from participating in a suppression hearing involving the co-defendant, Michelle Colton regarding the stop of her vehicle by the State Police.

The People's application relies upon the Court of Appeals case of People v. Henley, 53 NY2d 403 (1981) and the Appellate Division case of People v. Hamilton, 232 AD2d 899 (3rd Dept. 1996).

Defendant submits opposition.

The suppression hearing focuses solely on the stop of the co-defendant's, Colton's, vehicle, a Budget rental truck, and the validity of the stop and "free air sniff" by a New York State Police drug dog. [*2]

Defendant, Volfson, is claiming an illegal seizure of the co-defendant Colton and the suppression of all statements made by her, particularly the statement where Colton pointed out Volfson as he drove by the location, in a separate vehicle, where the stop of Colton's rental truck was occurring. Volfson was then pulled over by police as a result. The defendant, Volfson, is a second felony offender and is alleged to have been driving the "chase" look out car for the co-defendants rental moving van containing two pianos stuffed with an excess of 200 pounds of marijuana.

The issue presented is whether the defendant, Volfson, has standing to raise an issue as to the co-defendant's Fourth Amendment rights, and therefore challenge the use of those statements at his trial whether or not the statements were constitutionally obtained from the co-defendant.

The Appellate Division in the Third Department affirmed the trial court's denial of suppression without a hearing and found that a "defendant lacks standing to challenge the legality of [co-defendant's] arrest, detention and statements and the use of the same as the basis for his arrest, even assuming each was constitutionally infirm." People v. Hamilton, 232 AD2d 899 (3rd Dept. 1996).

The Third Department has also held that the defendant lacked standing to raise an argument for suppression of evidence based on alleged violation of co-defendant's Fourth Amendment rights and, thus, could not challenge use of co-defendant's statement as basis for search warrant. People v.Eaddy, 200 AD2d 896 (1994).

The Court of Appeals has held that a defendant may not seek suppression of evidence obtained by the police from a third party in violation of the third party's rights...and even if the police consciously violate the third party's rights solely to obtain evidence against another, the defendant does not have standing under the Fourth Amendment to challenge the illegality and a court is unjustified in exercising its supervisory power to suppress evidence so obtained. A challenge is open only to the victim of the illegality. People v. Henley, 53 NY2d 403, 410 (1981) (co-defendant had no standing to challenge the illegality of his brother's custodial detention and transportation, therefore evidence seized is suppressed only as to one defendant and not the other.) See, also, United States v. Payner, 447 U.S. 727.

This Court finds that the defendant Volfson, may not seek suppression of evidence obtained by the police from a third party, co-defendant Colton, in violation of the third party's rights. The Constitutional challenge is personal to the protected rights of the victim of the illegality only.

Based upon the above, it is

Ordered, that the People's application to preclude defendant Volfson from participating in the suppression hearing involving co-defendant Colton is granted.

This shall constitute the Decision and Order of this Court. [*3]

DATED: June 26, 2008

Monticello, NY

_________________________________

Hon. Frank J. LaBuda

Sullivan County Court Judge

and Surrogate