Defendant is charged, in relevant part with Criminal Possession of a Weapon in the Second, Third and Fourth Degrees (CPL §§ 265.03[3], 265.02[1] and 265.01 [1]) and Unlawful Possession of Marihuana (PL § 221.05). The People allege that on June 3, 2010, defendant, acting in concert with his co-defendant, Kevin Hoeston, possessed a loaded firearm, specifically a pistol, and a quantity of marihuana. Pursuant to a search warrant issued on June 3, 2010 by the Honorable Frank P. Nervo, Police Officer Felipe Tabales recovered a loaded .9 MM Ruger, two boxes of ammunition, a magazine with 14 ball rounds and three bags of marihuana from a safe inside a bedroom at 2784 Valentine Avenue, apartment 1 (GJ Mins MK 19). Defendant moves now for an order suppressing "evidence seized pursuant to [the] search warrant authorizing the search of Apt. 1 of 2784 Valentine Avenue. Bronx, NY on the grounds that the application in support of the warrant contained a knowingly and intentionally false statement; or, a statement which was made with reckless disregard for the truth" (Sullivan Notice of Motion p 1). Alternatively, defendant moves for a hearing pursuant to Franks v. Delaware, 438 US 154 (1978), and People v. Alfinito, 16 NY2d 181 (1965).

Defendant's argument in support of this application is two-fold. First, he argues that, in the affidavit in support of the issuance of the search warrant, Officer Tabales affirmed that he "looked through a slit in the top of the safe and observed a black firearm" (Sullivan Aff p 3). Defense counsel states that "the safe which was made available to me for inspection was the one seized from the subject premises. The undersigned has inspected that safe, and can state that it [*2]does not contain a slit at the top of it" (id.).^[FN1] Thus, counsel argues, "Based on the undersigned's inspection of the safe, it would have been impossible for the affiant to have looked through a non-existent hole at the top of the safe and viewed a firearm" (id.). The second prong of defendant's claim is addressed to the oral testimony given by Officer Tabales in support of the issuance of the search warrant. Officer Tabales testified that, "near the TV and the safe, as I looked at the safe, there was a slot on the safe just about what you call the combination lock. As I looked, I observed a black firearm inside" (Search Warrant Application 6/3/2010 p 7). Defense counsel states that, "based upon the undersigned's inspection of the safe, it appears to the undersigned that it would have been physically impossible to have seen a firearm by simply looking at the safe in the manner testified to by the officer as set forth in the stenographic minutes of the proceedings" (Sullivan Aff p 5).

The People oppose the motion for a Franks/Alfinito hearing, arguing that defendant "has filed a motion asking for suppression of items seized during the execution of a search warrant without making a single factual statement regarding [his] legitimate expectation of privacy in the place searched or the item seized" (Buentello Aff p 2). Alternatively, the People argue, relying on People v. Alfinito, supra, that even if this Court were to find that defendant had standing to controvert the search warrant, he has failed to make sufficient allegations to warrant a hearing.

For the reasons that follow, the motion is granted in part and denied in part, as set forth more fully below.

It is well settled that "[a] defendant seeking suppression of evidence has the burden of establishing standing by demonstrating a legitimate expectation of privacy in the premises or object searched (citations omitted). . . . A legitimate expectation of privacy exists where defendant has manifested an expectation of privacy that society recognizes as reasonable (citations omitted)." People v. Ramirez-Portoreal, 88 NY2d 99, 108 (1996). Moreover, "[s]tanding is a fundamental and threshold issue which a movant must address. The burden of establishing standing is borne solely by the defendant who seeks to challenge the search or seizure at issue (citation omitted)." People v. Ruiz, 26 Misc 3d 1215(A) *2 (Sup Ct New York County 2010).

For the reasons that follow, defendant has failed to meet this burden with respect to the back bedroom and the safe located in that bedroom.

As the People correctly argue, defendant does not address the issue of standing in his motion to controvert the search warrant. In his earlier omnibus motion, defendant alleged that he "had standing because [his] testimony . . . before the grand jury establishes that [he] was lawfully on the premises and that he has standing to contest the entry in the apartment and the search and seizure which occurred therein" (Omnibus Motion p 28). But the United States Supreme Court has specifically rejected "legitimate presence on the premises as a test for assessing Fourth Amendment rights." People v. Wesley, 73 NY2d 351, 356 (1989); see Rakas v. Illinois, 439 US 128 (1978). [*3]

The People also argue that defendant's grand jury testimony established only that he was an "occasional guest" in the residence "and thus, [defendant] cannot ask for suppression under the Fourth Amendment, regardless of the validity of the search warrant in this case" (Buentello Aff p 5).^[FN2]

With respect to the bedroom and safe from which the pistol, ammunition and marihuana were recovered, defendant testified that:

They interviewed me. They interviewed everybody, said the exact same thing. They didn't have any probable cause, no access to that back room in the apartment, this apartment.

We don't even have keys to that. Our names are not on the lease. We don't have keys or know the combination to the safe.

The name of the owner of name who is on the apartment is Wendy A. Her phone number is [redacted] she is the owner of the apartment.

She stated, gave permission to be there. Her call can be revealed if you called because she is in Amsterdam and the safe belongs to her brother.

None of us has keys we're not on the lease. We visit her . . . We stay in the room. In the back, it has a lock. That room is off limits.

(GJ Mins MK 31).

The only area we stay is in the living room which is not locked.

(GJ Mins MK 32).

They ramshacked [sic] the house and this is not something we live by. They have access to one room. The door was broken. No keys was recovered on any of us. The lock, the door is locked. The safe, whatever, it was kicked. I have no keys. The safe was there in the back.

(GJ Mins MK37).

I am innocent. I have nothing. They recovered a firearm. They have to have fingerprints, right? That much.

But it is in the safe. Nobody knows the combination or has they keys in the back room. Where this back room is, where are the keys to the safe? We don't have access to this room whatsoever. [*4]

(GJ Mins MK41).

Defendant was specifically asked:

Q. Okay. Your testimony is that nobody has access to the back room where the safe is?

A. Not at all. She has strict rules. She visits family in Amsterdam, visits family, and was there two days prior. She had to come there days before this incident.

Q. So your testimony is she kept the safe in the room, and the safe was locked all the time?

A. All the time the lock is at that door.

(GJ Mins MK43). As the People correctly argue, defendant's sworn grand jury testimony demonstrates, unequivocally, that the back bedroom was locked, defendant did not have access to that bedroom, the safe was inside that bedroom, the safe itself was locked and defendant did not know the combination. Defendant stated definitively that he stayed in the living room of the subject premises and had absolutely no access to the bedroom or safe. Accordingly, defendant does not have standing to contest the search of the bedroom or the safe or the seizure of any property in the bedroom or the safe. See Kamins, New York Search & Seizure § 103 at 1-138 (2008 printed edition) ("A tenant who lives in an apartment cannot challenge an unlawful warrantless search of a suitcase belonging to a third person unless the tenant can establish a reasonable expectation of privacy in the suitcase," citing United States v. Haqq, 278 F.3d 44 [2d Cir 2002]); People v. Thurman, 262 AD2d 987, 988 (4th Dept) (affirming defendant's conviction for Criminal Possession of a Weapon; motion court properly denied defendant's motion to suppress physical evidence without a hearing, where defendant's motion did not containsworn allegations of fact with respect to standing and his grand jury testimony, unequivocally denying that he resided in the searched premises, "thereby establish[ed] that he was without standing to contest the legality of the search and seizure"), lv denied, 94 NY2d 830 (1999);People v. Ruiz, 26 Misc 3d 1215(A) * 2-4 (rejecting defendant's claim, after Payton hearing, that she had standing to challenge police intrusion into locked bedroom rented to a third party to which defendant had no access).

However, while the People are correct that defendant's grand jury testimony establishes that he has no standing to contest the seizure of evidence from the back bedroom or the safe, the Court can not agree that his testimony establishes definitively that he had no legitimate expectation of privacy in the rest of the apartment. For example, defendant testified to the grand jury that "[t]he N.Y.P.D. they did not come in my residence with ID" (GJ Mins MK 29, emphasis supplied). Defendant also stated, "We all have permission to be there. It's like a safe haven to hang out. I'm there on a constant basis. My two article[s] of clothing, my personal gym bag is there. They confiscated and showed all my articles" (GJ Mins MK 36). Finally, defendant was asked these questions and gave these answers:

Q. Mr. Lesane, back to June 3, 2010, inside 2784 Valentine Avenue, are you saying you were not living there; is that correct? [*5]

A. No.

Q. Is your name on the lease or do you own a pair of keys of that residence?

A. Do I own a pair of keys of that residence?

Q. You have stayed in that residence?

A. Yes, I have spent the night there.

Q And when you stay there, where do you stay?

A. I stay in various places in Welfare. I am homeless. I stay with - - at my girl's mother's house. I stay in numerous, different places.

Q. You basically stay there for a night, day?

A. Yes.

(GJ Mins MK 42).

As the People correctly state, in determining whether a defendant has a legitimate expectation of privacy, courts generally consider whether the defendant exhibited an expectation of privacy in the place or item searched and whether the defendant's expectation of privacy is one that society would deem reliable (Buentello Aff p 3). Moreover, in making that determination, the court may consider:

whether the individual took precautions to maintain privacy, the manner in which the individual used the premises and whether the individual had the right to exclude others . . . .

A showing of a possessory or proprietary interest in the item seized by itself, however, is not the determinative factor on the issue of standing (citation omitted). The number of times a person stays in a particular place, the length and nature of the stay, the indicia of connectedness and privacy, like change of clothes or sharing expenses or household burdens, are all factors which may alone or in combination with other factors support a reasonable expectation of privacy which is protected by the Fourth Amendment (citations omitted). The burden of demonstrating the factors and their reasonableness to support the legal conclusion is on the defendant (citations omitted).

People v. Rodriguez, 69 NY2d 159, 163 (1987). See also People v. Ortiz, 190 AD2d 580 (1st Dept 1993), aff'd, 83 NY2d (1994) (defendant had no standing to suppress evidence seized in apartment where his girlfriend and daughter lived, even though he occasionally stayed there overnight but had not stayed overnight for some time, had no key, did not pay rent and kept no possessions there). The grand jury minutes are simply insufficient to allow the Court to hold that defendant did have a reasonable expectation of privacy in the rest of the apartment. Accordingly, if the People intend to introduce evidence at trial recovered from any other area in the apartment, [*6]they are directed to inform both the Court and defendant within seven days from the date of this order. If the People answer in the affirmative, this Court orders a hearing to be held at which defendant will have the burden to demonstrate that he has standing to contest the search, pursuant to the search warrant, of the remaining rooms in the apartment. People v. Jose, 252 AD2d 401, 402 (1st Dept 1998); People v. Cordoba, 179 AD2d 404, 404 (1st Dept 1992), lv denied, 84 NY2d 1010 (1994).

Therefore, defendant's motion for a Franks/Alfinito hearing is held in abeyance pending the People's response to the Court's inquiry and the outcome of a standing hearing, if necessary.

This opinion constitutes the decision and order of the court.

Dated:Bronx, New York

June 28, 2012

_______________________________

Miriam R. Best

Acting Justice of the Supreme Court