The defendant's motion to suppress certain evidence following a Mapp/Dunaway/Wade hearing, including any physical evidence that may have been recovered pursuant to a search warrant, upon consideration of oral argument following the hearing and post-hearing papers, dated February 21, 2014, submitted by the defense is denied.

Background

The defendant has been indicted for Attempted Murder in the First Degree and related charges for shooting at Police Officer Brayan Terrazas. This alleged shooting followed within minutes of the defendant's alleged shooting of another individual, Lamarr Rembert, for which the defendant was also indicted, but those counts were dismissed by another Judge of this Court for reasons unrelated to this decision. Those charges have not been re-presented to a Grand Jury apparently due to Rembert's lack of cooperation.

The Hearing [*2]

Detective Albert Brust, of the 88th Precinct Detective Squad, testified as to the circumstances surrounding the recovery of a gun and the arrest of the defendant and his placement in a lineup.

Prior to becoming a Detective in 2006, Detective Brust patrolled the Ingersoll Housing Projects, the scene of this incident, for several years beginning in 1997 and was familiar with many of its residents. Since 2006, his assignment in the 88th Detective Squad included coverage of this housing project, which is under the management of the New York City Housing Authority (NYCHA).

In the course of his police duties, he came to know the defendant, under the nickname "Wayne-O," as a resident who used to live on the 11th floor of 24 Monument Walk. He also came to know a person named Lamarr Rembert as a project resident who was known to sell drugs and commit robberies.

On the date of the incident, June 13, 2012 at about 6:45 p.m., while in a patrol car, the Detective received a radio report of shots fired at 24 Monument Walk. A second radio report stated that a person involved was being pursued.

Upon arriving at 24 Monument Walk, Detective Brust spoke with other officers who were already at the scene. He learned that Housing Officer Adrian Perez had heard numerous shots fired and went in that direction to investigate. Perez saw a male walking away from that area. When Perez directed that person to stop, themale ran towards 24 Monument Walk. Perez ran after him.

While in pursuit, Officer Perez observed his partner, Housing Officer Terrazas, exit his police vehicle and also give chase. Officer Perez lost sight of his partner and the subject of the pursuit and then heard numerous shots fired. Upon turning the corner of a building, Officer Perez told Detective Brust that Officer Terrazas said that the male had fired shots at Officer Terrazas and that Officer Terrazas returned fire.

Detective Brust observed two Makarov .9 millimeter shell casings in front of 24 Monument Walk and one Makarov shell casing and a deformed spent round in the lobby. The Police Department does not use Makarov ammunition.

Detective Brust was informed there was a shooting victim in an ambulance who the Detective upon going there recognized to be Lamarr Rembert. Rembert appeared to be emotionally upset, bleeding, and in pain from gunshot wounds to both legs and the scrotum. In answer to the Detective's repeated questions over a period of about 30 seconds, Rembert eventually said Wayne-O shot him and then clarified he was referring to "Webb." Rembert was taken to Bellevue Hospital where at about 9:45 p.m. he identified the defendant's photograph from a six-photograph array as the shooter.

After speaking with Rembert in the ambulance, Detective Brust received a telephone call from Detective Sperco at about 7:00 p.m. who said "he was with a 911 caller." Detective Brust was told by Detective Sperco that after hearing numerous shots, the caller looked out her window and saw an individual being chased by a police officer. The caller stated she lost sight of these individuals and then heard more gunfire. Shortly after that, she observed an individual (Detective Brust's testimony did not specifically [*3]state this was the same individual who was being chased by the police) jump out of a first floor window at 24 Monument Walk and then a backpack was thrown out to that individual who left with it. ^[FN1]

While speaking on the telephone with Detective Sperco, Detective Brust was directed by Detective Sperco who was speaking with the 911 caller to walk to the rear of 24 Monument Walk. The 911 caller pointed out to Detective Sperco the specific first floor window from which she saw the individual jump. This location was communicated to Detective Brust. Detective Brust determined that the window belonged to Apartment 1H.

At about 7:10 p.m., about 15 to 20 minutes after the shooting (although in the Grand Jury he testified it was about 40 minutes after), Detective Brust knocked on the door of Apartment 1H. He was accompanied by Detective Schwenk and a number of Emergency Service Unit police officers.

The door was answered by Linda McFadden, a woman described as being in her mid-fifties, who was known to Detective Brust for many years. She was shaking and crying and had her hands held tightly to her chest. The Detective said that something in McFadden's past had caused her to lose her hearing and ability to speak and that she was able to read lips. (The hearing testimony did not clarify how McFadden, if she was totally deaf, was able to respond to a "knock" on her front door. There was another person in the apartment at the time who may have alerted her to a knocking on the door, or, in fact, the Detective may have rung a doorbell connected to a blinking light system commonly used by hearing-impaired people.)

The Detective asked McFadden, "Somebody just run in here?" and she nodded in the affirmative. The Detective asked, "Was it Wayne-O?" and she again nodded and pointed to the rear of the apartment.

The Detective was able to observe a partially opened door to a room about 20 feet straight into the apartment. The Detective asked, "Is he still here?" and McFadden indicated that she did not know.^[FN2] The Detective, for safety reasons, asked her to leave the [*4]apartment.

Proceeding to the partially opened door, the Detective noticed that the frame and door jam around a deadbolt lock were splintered.

The room was a virtually unfurnished small bedroom, approximately 8 feet by 10 feet, which contained, according to photographs in evidence (Defendant's Exhibits A, B, C and D), a small television, some clothing, personal items, and packaged food stacked on the floor, in a shopping cart, and on a windowsill.^[FN3]

There was also a bed taking up most of the floor space in the room consisting of a bare mattress on a box spring resting on a frame which appears to be about 4 to 6 inches off the floor (See Defendant's Exhibit D). One end of the bed was against the wall to the left of the door, and the other end of the bed was so close to the door that Detective Schwenk could touch it while standing in the doorway. Holding the door jamb with one hand, Detective Schwenk lifted the box spring with his other hand to see if anyone was under the bed. Detective Schwenk raised both the mattress and the box spring to look under the bed, and then the box spring dropped from his hand exposing a gun that had been between the mattress and the box spring (See Defendant's Exhibit D). The gun was not moved or touched until after it was photographed.

Detective Brust then entered the room and lifted the mattress to confirm that the object exposed by Detective Schwenk was a handgun.

After finding the gun, Detective Brust asked McFadden, "Are you renting this room to Wayne-O?" and she nodded in the affirmative but did not indicate for how long or whether the defendant had been sleeping there. She also indicated that the bedroom door had been forced open by the defendant. At some point after the gun was found, Ferronda Polite, a co-occupant of the apartment, returned and assisted Detective Brust in communicating with McFadden.

While in the apartment, Detective Brust encountered Philip Figueroa, who was in the second bedroom. He told the Detective he had seen the defendant enter the apartment. The detective had seen Figueroa standing in another doorway when he first approached the bedroom where the gun was found.

Detective Brust was directed by his superiors to confer with the District Attorney's Office as to whether to obtain a search warrant before seizing the gun. A search warrant was obtained, but the affidavit (Defendant's F in Evidence) did not mention the fact that [*5]the police already had observed the gun under the mattress. There was no testimony about either the execution of this search warrant or when the gun or anything else was removed from the room.

Detective Brust testified that Police Lieutenant McHugh contacted New York State Parole officials at about 9:15 p.m. He learned that on June 9, 2012 the defendant had completed serving a term of parole after his release from prison and that while on parole he had given as his home address 315 Fountain Avenue, located in a different area of Brooklyn. The Lieutenant also obtained the defendant's cell phone number. This information was passed to Detective Brust at about 10:15 p.m.

The defendant, according to Detective Brust, was taken into custody by agents of the fugitive task force of the High Intensity Drug Trafficking Agency (HIDTA) in an apartment at 620 Gates Avenue in Brooklyn early in the morning of June 14, 2012. HIDTA had been requested to assist in apprehending the defendant. There was no testimony at the hearing as to either how the defendant was located or the details of his apprehension. (From discussion with counsel outside the hearing record, the Court was informed that the defendant was located through electronic tracking of his cell phone.)

After his apprehension, the defendant was taken to the 88th Precinct. The defendant gave 315 Fountain Avenue as his home address. The defendant was placed in a so-called "double-blind" lineup viewed by Officers Perez and Terrazas conducted by another detective. Both Officers came to the precinct to view the lineup after the defendant was in custody at the precinct and did not see the defendant or the fillers until the time of the lineup.

Kimberly Williams testified that she had been the defendant's parole officer. Based on his parole records, the defendant lived exclusively at 315 Fountain Avenue from June 2011 until June 9, 2012 at which time he completed his parole. The records contained no information as to his address after that date.

The Court, at the request of the prosecution, took judicial notice of the Criminal Justice Agency report in the Court File of this case which stated that the defendant, when interviewed on June 14, 2012 after his arrest, gave 315 Fountain Avenueas his address and stated his prior address was on Bedford Avenue.

Detective George Fahrbach of the Brooklyn North Homicide Squad testified that he was asked to conduct the lineups in a so-called "double-blind" fashion. He did not know who was the subject of the lineup and had no prior contact with either Officer Perez or Officer Terrazas who were to view the lineup. Detective Fahrbach was accompanied by his supervisor, Sergeant Moran, who also did not know the lineup's participants.

Detective Fahrbach arrivedat the 88th Precinct on June 14, 2012 at about noon. The fillers for the lineup had already been obtained, and the two witnesses were together in a room separated from where the lineup was to be conducted.

Officer Perez was the first witness taken to view the lineup at 12:19 p.m. He stated he could not recognize anyone. Officer Perez then left the viewing area without [*6]having any contact with the second witness.

Officer Brant Terrazas next viewed the lineup at 12:23 p.m. As was done with Officer Perez, Detective Fahrbach read instructions to Officer Terrazas concerning the lineup procedure. Officer Terrazas identified the person in position #4 (who was the defendant) as the person he saw shooting. The lineup participants all remained seated during the viewing as depicted in People's Exhibit 4A and 4B.

Discussion

Despite defense assertions regarding Detective Brust's testimony being "tailored to nullify constitutional objections," the Court finds his testimony to be credible, as it does the testimony of the other witnesses. Detective Brust's testimony was essentially consistent, except for certain details in the search warrant affidavit that he did not personally draft, and provided an uncontradicted account of the relevant events that was neither physically impossible, nor contrary to experience.

In particular, the civilians McFadden, Polite, and Figueroa — who were in a position to offer contradictory testimony as to the events surrounding the finding of the gun — were not called by the defense. If the defendant, in fact, rented a room in that apartment, he should have been acquainted with all three of them. Thus, Detective Brust's testimony that he entered the apartment before the Emergency Services Officers is accepted as credible as is his testimony as to how the gun was found. There is no objective reason to find the testimony of Detective Brust not to be credible. People v. Garafolo, 44 AD2d 86, 88 (2nd Dept. 1974). See also People v. Bieganowski, 104 AD3d 1276 (4th Dept. 2013); compare People v. Smith, 77 AD2d 544 (1st Dept. 1980) (officer's testimony seeking to justify warrantless entry into a home rejected by the appellate court as incredible based on the particular facts of that case which relied on a claim of unlikely and unsupported coincidences to explain how contraband came into plain view). See People v. Miles, 55 AD3d 307, 308 (1st Dept. 2008) (officer credible despite discrepancies between testimony and paperwork); People v. Glenn, 53 AD3d 622, 624 (2nd Dept. 2008) (officer credible despite inconsistencies between his hearing testimony and the criminal court complaint and arrest report); Matter of Mark, M., 236 AD2d 540, 541 (2nd Dept. 1997) (officer credible despite omission in his Stop and Frisk Report that he observed a gun handle in the defendant's waistband prior to the frisk).

In this case, the police discovery of the gun without a warrant was lawful based on McFadden's apparent authority to implicitly consent to the search as well as the exigent/emergency circumstances. In addition, the defendant has not met his burden to prove he even has standing to contest the search.

Apparent Authority to Implicitly Consent

Although McFadden did not expressly consent to the police entry into the apartment and search of the bedroom, her behavior and interaction with Detective Brust at [*7]the door constituted an implicit, voluntary consent to enter the apartment and search for the defendant. Furthermore, even if she did not have the actual authority to consent to the search of the bedroom, under the circumstances, it would have appeared to a reasonable person in the Detective's position that she had the authority to do so.

Detective Brust came to the door of McFadden's apartment within approximately 15 to 20 minutes after the shooting. He was accompanied by Detective Schwenk and a number of Emergency Service Unit Officers. It was close enough in time to the preceding relevant events that when McFadden came to the door she was shaking and crying.

McFadden, who knew the Detective for years, communicated to him that Wayne-O had just run into the apartment and pointed to the direction of an open door in the rear of the apartment. McFadden also indicated that she did not know whether the defendant was still there. At that time, based on Rembert's statements in the ambulance to Detective Brust, the Detective's conversation with Officer Perez, the Detective's observations of shell casings, and the information from the 911 caller, the Detective had probable cause to believe the defendant had recently shot Rembert and had also fired shots at Officer Terrazas.

Based on the circumstances, including the pre-existing relationship between Detective Brust and McFadden, her actions constituted an implied, voluntary consent for the police to enter the apartment and search for McFadden. Because there can be no other interpretation of these facts, the People have met their "heavy" burden to show her consent was voluntary and not the result of police pressure. People v. Whitehurst, 25 NY2d 389, 391 (1969). McFadden's act of pointing inside the apartment expressed not only her consent, but her affirmative, uncoerced wish (People v. Gonzalez, 39 NY2d 122, 128 [1976]) that the police find the defendant who presented a possible continuing threat of an unknown nature to her. (The police later learned that the defendant broke the lock to the bedroom door, which additionally contributed to McFadden's concern about the defendant's presence in her apartment.) Despite the presence of multiple police officers at the door, McFadden's consent to the police entry was a genuine request for help and not, as noted in Gonzalez at 129, a submission to police authority.

When McFadden pointed to the rear of the apartment, this was a sufficient expression of her consent to allow the police to enter. People v. Moran, 68 AD3d 786, 787 (2nd Dept. 2009) (defendant reported a burglary and "led" the police into his apartment); People v. Rivas, 182 AD2d 722 (2nd Dept. 1992) (woman who spoke no English consented to police entry into her apartment with hand signals).

The scope of the permissible search under these circumstances that would be apparent to a reasonable person from McFadden's consent was to look for the defendant inside the apartment. People v. Gomez, 5 NY3d 416, 419-420 (2005) (consent to search a car would not, to a reasonable person constitute a consent for the police to pry open the gas tank with a crowbar); Florida v. Jimeno, 500 US 248, 251 (1991) (the standard for [*8]measuring the scope of a consent to search is "objective" reasonableness — "what would the typical reasonable person have understood by the exchange between the officer and the [other party to the conversation]?").

Upon approaching the bedroom pointed to by McFadden, Detective Brust observed a broken door lock on its door frame. Looking inside the small bedroom, Detective Brust did not see anyone. From the small size of the room and the absence of a closet, it was immediately apparent to the police that the only possible hiding place was under the bed. There was an unmade bed close to the door which may, or may not, have been far enough off the floor for someone (who may have had a gun) to hide under.

Rather than take out a tape measure while standing in the doorway to the room to determine the distance of the box spring from the floor or crawl on the floor to look under the bed and perhaps literally stare down the barrel of a gun being held by someone whohad allegedly just exchanged shots with a police officer, Detective Schwenk attempted to get an "aerial view" of what was under the bed by lifting the box spring and the mattress with one hand.

All of these actions were within the scope of McFadden's consent to enter the apartment and search for the defendant. When Detective Schwenk inadvertently dropped the box spring before dropping the mattress, a gun was exposed between the two.

Although there was no implied consent to search the apartmentfor anything but the defendant, the plain view observation of the gun was not the result of an intentional search of the bed beyond the scope of McFadden's consent (Arizona v. Hicks, 480 US 321, 324-325 [1987]), but, rather, an unanticipated, inadvertent, plain view observation from a vantage point where the police had a right to be. People v. Spinelli, 35 NY2d 77, 80 (1974); see also People v. Jackson, 41 NY2d 146, 149-150 (1976) (officers investigating a robbery were given lawful consent by the owner of a house to search her house for the defendant who rented a room there; from a hallway outside the defendant's rented room, the police observed through an open door a partially opened armoire containing an overcoat matching the description of the coat worn by the robber; the police lawfully entered the room to seize the coat and in the process observed other incriminating evidence, including a cap gun resembling the revolver used in the robbery).

The defendant has argued that once Detective Schwenk dropped the mattress back on top of the gun, the police had no right to lift the mattress to get another look at the gun, because the second viewing was not "inadvertent." The defendant argues that once the mattress fell back on top of the gun, the only lawful course of action was for the police to obtain a search warrant.

This Court disagrees. There was no "second look" or "second search" in this case. The circumstances constituted one, unbroken continuous incident.

Further, once the police lawfully saw the gun, the police had a right to seize it without the consent of McFadden or anyone else, just as in People v. Jackson, 41 NY2d at 149-150, the police seized all the physical evidence in plain view in Jackson's armoire. [*9]

In this case, the police, after consulting with the District Attorney's Office, decided to obtain a search warrant following Detective Brust's second look at the gun. Obtaining this warrant resulted in, according to the search warrant affidavit, a police guard being stationed until the next day in McFadden's home to safeguard the evidence. Therefore, it does not appear to this Court that anyone's Fourth Amendment rights were violated by Detective Brust lifting the mattress, other than to note that if he had removed the gun when he first had a chance to do so, the police would not have had to stay all night in McFadden's apartment safeguarding the gun.

In raising the issue of whether Detective Brust's "second look" at the gun was beyond the "inadvertent discovery" requirement of the plain view exception, the defendant brings up for discussion what has been noted as a "split" between Appellate Division Departments over whether to continue to adhere to the inadvertence requirement of the plain view exception. The First and Third Departments no longer require the doctrine of "inadvertent discovery" while the Second and Fourth Departments still do. Kamins, New York Search and Seizure, § 4.03 (4) at 4-151 (2013 Edition). Compare, People v. Spencer, 272 AD2d 682 (3rd Dept. 2000); People v. Batista, 261 AD2d 218 (1st Dept. 1999); People v. Laws, 208 AD2d 317 (1st Dept. 1995) with People v. Braham, 97 AD3d 689 (2nd Dept. 2012); People v. James, 27 AD3d 1089 (4th Dept. 2006).

The United States Supreme Court in Horton v. California, 496 US 128 (1990), has held that the fact that even though inadvertence is a characteristic of most legitimate plain view seizures, the fact that an officer expects to find an item — as Detective Brust did when he lifted the mattress — does not invalidate the seizure.

In People v. Diaz, 81 NY2d 106, 110 (1993), citing Horton, the Court listed three criteria for a warrantless lawful seizure of an instrumentality of a crime under the plain view doctrine: (1) the police are lawfully in the position from which the object is viewed; (2) the police have lawful access to the object; and (3) the object's incriminating nature is immediately apparent.

Thus, in Diaz the Court of Appeals followed Horton and eliminated the inadvertence requirement. In this case, once the gun was exposed on the box spring by Detective Schwenk and observed by Detective Brust, all three criteria listed by Diaz were met, and Detective Brust had a right to lift the mattress and seize the gun regardless of the fact that Detective Schwenk had dropped the mattress over the gun.

As to whether McFadden had the actual authority to consent to the police entry into the bedroom that was purportedly rented by the defendant, there is no evidence that McFadden did not have the actual authority to do so.

The testimony at the hearing was that she was a tenant in this NYCHA apartment which this Court assumes, absent any evidence to the contrary, gave her the legal right to have access to the entire apartment. This Court further assumes, absent any evidence to the contrary, that tenants in NYCHA buildings, where occupancy is strictly regulated, do not have the legal right to sublet all or part of their apartments. Furthermore, the [*10]defendant, who himself was a past resident on the 11th floor of this same building, was certainly in a position to know that he had no legal right to sublet a room in a NYCHA apartment.

Therefore, even though there was evidence that this bedroom door had a lock that had been broken and that Detective Brust testified that after he found the gun, McFadden nodded when he asked her if she had been renting the bedroom to Wayne-O, this evidence does not establish that McFadden did not have the legal right to consent to a police entry into that bedroom, particularly in the absence of denial of permission by anyone else. Georgia v. Randolph, 547 US 103,106 (2006). There was no evidence at the hearing that the defendant had any arrangement with McFadden whereby she was excluded from that bedroom, even if he was "renting" it from her.

Finally, even if McFadden did not have the actual authority to consent to the police entry into the bedroom, the police, in this case having no knowledge at the time of the defendant's purported "extra-legal" rental arrangements with McFadden, reasonably believed, based on Detective Brust's prior acquaintance with her, that McFadden lived in that apartment and apparently had the authority to give her consent to search the entire apartment. People v. Adams, 53 NY2d 1, 9-10 (1981). Therefore, the police entry into the bedroom and the discovery of the gun therein was lawful.

Exigent Circumstances

Alternatively, even if the police did not have a valid consent from McFadden to enter the bedroom and search for the defendant, the police entry into the bedroom without a warrant was justified by the exigent circumstances known to the police. From information supplied by Rembert and Officer Perez, a person known as Wayne-O had within the past 20 minutes shot Rembert and exchanged shots with the police in the vicinity of 24 Monument Walk. Detective Brust knew that Wayne-O had lived in 24 Monument Walk on the 11th floor before going to prison and that he was now on parole. Detective Brust found shell casings outside of and in the lobby of 24 Monument Walk. Detective Brust was given information from an identified 911 caller speaking in person to another Detective that after hearing gunshots, the caller saw someone leave through the back window of Apartment 1H at 24 Monument Walk and have a backpack thrown to him. Upon going to the door of Apartment 1H, Detective Brust met the tenant, a woman he previously knew, who appeared to be visibly upset and who communicated to him that Wayne-O had been in the rear of the apartment and, further, that she did not know if he was still there. The police could not be certain if the person the 911 caller had seen leave through the window was actually Wayne-O, the shooter, or, perhaps, someone escaping from the shooter, meaning that Wayne-O could still be in the apartment.

These facts gave Detective Brust sufficient probable cause to believe Wayne-O was still there and posed a risk of harm to others who might be in the apartment. Although Detective Brust had information someone had already gone out of the back [*11]window, this person may not have been the defendant, and "probable cause" does not require certainty. Brinegar v. United States, 338 US 160, 175 (1949). Indeed, if McFadden did not know whether or not the defendant was still there, that was sufficient cause for Detective Brust to look for himself without obtaining a warrant in order to prevent harm to others. People v. Doerbecker, 39 NY2d 448, 452 (1976); People v. Stevens, 57 AD3d 1515 (4th Dept. 2008) (police responding "promptly" to the scene of a shooting and being informed that the person, identified by name, who had fatally shot the witness' son had fled into a house across the street were presented with sufficient "exigent circumstances" to enter the house without a warrant in light of the gravity of the crime, the suspect's willingness to use a gun, the possibility of an attempted escape from the house, and the potential danger presented to others who might be in the house); People v. Barrows, 170 AD2d 611 (2nd Dept. 1991).

Once lawfully inside the bedroom to look for the defendant pursuant to the exigent circumstances presented, the discovery of the gun was lawful pursuant to the plain view exception discussed above.

Standing

The People have argued that even if the police entry and search of the bedroom was unlawful, the defendant has not met his burden to show he has standing, i.e. a reasonable expectation of privacy in the bedroom, so as to be aggrieved by the police conduct. People v. Ponder, 54 NY2d 160 (1981).

The People base their argument on the fact that the defendant after being arrested gave his home address as 315 Fountain Avenue, the same address that he used for the year he was on parole, which expired on June 9, 2012, four days before the search. Additionally, the People argue that if, in fact, the defendant had an expectation of privacy in that bedroom, he would have had a key to it and would not have had to have broken the doorlock to enter.

The defendant argues that his standing has been adduced by Detective Brust's testimony on the People's case that McFadden responded with a nod in answer to his questioning if she was renting the bedroom to Wayne-O and through the search warrant affidavit of Detective Brust (Defendant's Exhibit F) which states that "Linda McFadden and Ferronda Polite ... identified themselves as co-occupants, who reside at the subject location (Apartment 1H) with Dwayne Webb." People v. Gonzalez, 68 NY2d 950, 951 (1986) (defendant may establish standing through hearsay evidence elicited during the People's direct case); CPL 710.60 (4) (hearsay evidence is admissible at a suppression hearing to prove any material fact). However, even though there may be sufficient facts presented to entitle a defendant to claim standing to contest a search, those same facts may not be sufficient to establish standing at the conclusion of the hearing. People v. Jove, 252 AD2d 401 (1st Dept. 1998), aff'd, 94 NY2d 844 (1999).

If the defendant was, in fact, lawfully renting the bedroom in McFadden's [*12]apartment, he would have standing to suppress based on an illegal search. People v. Ponto, 103 AD2d 573 (2nd Dept. 1984); People v. Stadtmore, 52 AD2d 853 (2nd Dept. 1976).

The defendant has the burden of demonstrating the factors to support the legal conclusion that there is a reasonable expectation of privacy protected by the Fourth Amendment from both the subjective point of view of the defendant and the objective point of view of society. People v. Ramirez-Portoreal, 88 NY2d 99, 108 (1996); Rakas v. Illinois, 439 US 128, 149 (1978); People v. Ponder, 54 NY2d 160, 166 (1981). For example, a defendant has no standing to suppress drugs found in an apartment where he was found sleeping on a sofa bed even if he allegedly slept there several times before. People v. Rodriguez, 69 NY2d 159 (1987).

In this case, other than the non-verbal hearsay assertion by McFadden to Detective Brust that the defendant "rented" the bedroom and the affidavit of Detective Brust stating that McFadden and Ferronda Polite (about whom virtually nothing is known) claimed that the defendant was a "co-occupant" of the apartment with them, the details of the defendant's status as an alleged "renter" are unknown. Conspicuously absent is evidence that the defendant possessed a key either to the apartment or to the broken lock on the bedroom door which he himself broke just before the police arrived.

The bedroom was sparsely furnished and included some clothing and other items as shown in the photographs in evidence. There is no evidence these items belonged to the defendant. It is unknown for how long this "rental" arrangement existed, whereas there was evidence based on the defendant's statements that he resided at 315 Fountain Avenue at the time of his arrest as well as parole records showing he resided at 315 Fountain Avenue at the time his parole expired four days before.

Further, because this apartment was part of the NYCHA system, McFadden was not authorized to sublet rooms in the apartment for any purposes, and any legitimate "co-occupants" would have to be approved by NYCHA. If the defendant was not living in the apartment at the time of his arrest and was not, in fact, renting the bedroom, he would not have standing to suppress evidence found therein even if from time to time he slept there overnight and intermittently contributed to the support of an occupant of the apartment. People v. Ortiz, 83 NY2d 840 (1994); see People v. Leach, 21 NY3d 969 (2013) (defendant arrested in his grandmother's apartment had no standing to challenge the search of its "guest room" even though the defendant had been staying in another room and had no key to the apartment).

Based on all the circumstances, including that this was a NYCHA apartment where it was unknown for how long the defendant had stayed there and for which there was no evidence he even had a key, the defendant has not met his burden to show that he had an expectation of privacy in that bedroom that society would objectively recognize as reasonable, despite the vague hearsay evidence at the hearing that he was some sort of "renter/co-occupant," of that apartment, which was not a status authorized by NYCHA.

[*13]Dunaway Ruling

At the time of the lineup, there was probable cause to arrest the defendant based on the photographic identification made by Rembert as the person who shot him. The discovery of the gun and McFadden's statements to Detective Brust to the effect that the defendant had come into the apartment, broken into the bedroom, and then left, apparently through the bedroom window according to the 911 caller, supported Rembert's allegations as well as Detective Brust's conclusion that the defendant also was the person who had shot at Officer Terrazas.

There was no testimony at the hearing as to how the defendant was located by HIDTA at 620 Gates Avenue or how he was taken into custody or what information about the case was known by HIDTA when they arrested the defendant.

Regardless of what information was known to HIDTA or why they took the defendant into custody, the police had probable cause thereafter to arrest the defendant and place him in a lineup once the defendant was brought to the 88th Precinct. The defendant at the hearing made no complaints about any police misconduct or bad faith during his capture or claimed any incriminating evidence was obtained therefrom. People v. Bradford, 15 NY3d 329 (2010) (confession following an arrest without probable cause attenuated by intervening acquisition of probable cause while defendant in custody); People v. Wilkinson, 5 AD3d 512 (2nd Dept. 2004). Therefore, the police custody of the defendant at the time of the lineup was lawful and attenuated from any illegality that may have taken place at the time of the defendant's arrest.

In situations such as this case, where there is probable cause to arrest a subject prior to a lineup, which involves only a defendant's passive participation, it is even more likely that the lineup identification can be found to be attenuated from the events surrounding a preceding unlawful arrest than in situations involving a confession, where the defendant's decision to make a statement may very well be influenced by the circumstances surrounding the unlawful arrest. People v. Jones, 2 NY3d 235 (2004) (where police lawful authority to arrest at the time of a lineup exists independently of the manner of the arrest, a lineup identification cannot be suppressed as the "poisoned fruit" of an illegal arrest, because a person in lawful custody has no right to refuse to participate in a lineup).

Therefore, the unknown facts surrounding the defendant's being taken into custody and brought to the 88th Precinct have no bearing on whether the lineup identification should be suppressed, because there was probable cause to arrest the defendant at the time of the lineup.

The Search Warrant and the Seizure of the Gun

Following the discovery of the gun, Detective Brust was advised to apply for a search warrant before removing it from the bedroom, which he did despite his personal opinion that a search warrant was not necessary, although it may have been necessary to [*14]search for other items.

His search warrant affidavit, prepared by the District Attorney's Office, did not mention that the gun had already been observed. At the hearing, pursuant to questions by the Court, Detective Brust testified he informed the Assistant District Attorney preparing the search warrant papers that he had seen the gun in the bedroom. He had no explanation why the affidavit omitted this information.

At the conclusion of the hearing testimony, which made no mention of any search pursuant to a warrant or any evidence that may have been recovered pursuant to that warrant, this Court was concerned about the search warrant affidavit omitting the fact that a gun had already been found, because a search warrant was, in fact, signed by another Judge of this Court based on that affidavit.

If the Police Department and/or District Attorney's Office had intentionally misled the Judge who issued the search warrant, this could have a bearing on the Court's decision at the hearing as well as presenting to the Court an ethical responsibility to take "appropriate action" with regard to any "substantial violation" of the Code of Professional Responsibility by the Assistant District Attorney who prepared the search warrant affidavit. See Rules of the Chief Administrator of the Courts, Part 100 (Judicial Conduct) § 100.3 (d) (2).

In answer to the Court's questions at the conclusion of the hearing, the prosecutor stated that based on his conversations with the Assistant District Attorney who prepared the search warrant affidavit, that Assistant District Attorney did not recall being given this information by Detective Brust. The prosecutor also stated that Detective Brust had told him on the telephone that the gun had been recovered prior to speaking with the Assistant who prepared the search warrant affidavit. Although these statements by the prosecutor were not part of the hearing testimony, this Court is satisfied that there was no intentional misconduct by either the Police Department or District Attorney's Office in not revealing in the affidavit that the gun already had been found.

Ironically, including in the affidavit a statement that a gun had already been found in the bedroom would have supported probable cause for the issuance of a search warrant. However, at the hearing the People did not argue the proposition that a misleading affidavit does not automatically result in invalidation of a search warrant unless the omitted information would have invalidated a finding of probable cause. Kamins 7.03 [3] [e] at 7-105; People v. Ortiz, 234 AD2d 969 (1st Dept. 1996).

If omission in the affidavit of the fact that a gun had been found was a conscious decision by the police rather than, to put it kindly, a snafu, the only reason for the police to deliberately omit this information would be the existence of a plan to conceal at a future time from a court holding a suppression hearing the fact that a search had taken place prior to the issuance of the search warrant based on a belief that the warrantless discovery of the gun was unlawful. However, there is no evidence of such a plan in this case. [*15]

Nevertheless, apparently not wishing to rely in any way on this search warrant at the suppression hearing, the People submitted no evidence at the hearing concerning the search that was made of the apartment or any property that was taken from the apartment pursuant to the search warrant. (The search warrant affidavit had requested permission to search for certain clothing matching that worn by the person being chased as described by Officers Perez and Terrazas as well as "firearms, ammunition, and firearm accessories.")

Even though the People presented no evidence at the hearing as to when or how the gun was seized and removed from the apartment, the absence of this testimony does not, as argued by the defense, require suppression of any evidence in this case.

As noted, the police observations of the gun were lawful, and upon observing the gun, the police had a right to seize it as contraband and evidence of a crime.

There were photographs taken of the room and the gun which were introduced at the hearing as defense exhibits, and the defense elicited testimony that the photographs fairly depicted the scene as observed by the police.

The defendant has made no claim that he had a possessory interest in the gun or alleged that it was wrongfully removed from the bedroom after its discovery, but only that the bedroom was unlawfully entered and searched resulting in the observation of the gun. On that issue, this Court has ruled against the defendant and has further ruled that upon observing the gun, the police had a right to seize it. The defense had an opportunity at the hearing to ask Detective Brust questions concerning the removal of the gun from the bedroom and chose not to raise any issues on this subject.

If the People seek to introduce the gun into evidence at a trial or introduce any evidence concerning tests that may have been performed on the gun, the People will have to establish an appropriate chain of custody which will necessarily include testimony concerning the actual removal of the gun. If at trial, or before, there is an issue raised concerning improprieties in the seizure of the gun, or any other pertinent facts that could not have been raised by the defense with due diligence at the suppression hearing, the defendant may request that the hearing be re-opened. CPL 710.40 (4) and 710.60 (5).

The Lineup and Photographic Identification

The lineup was not unnecessarily suggestive and fairly conducted. The fillers adequately resembled the defendant, and the witnesses did not see any of the participants in the lineup prior to viewing it. No suggestions were made to the witnesses as to who should be identified.

The failure of Officer Perez to identify anyone in the lineup is additional evidence that the lineup was not unnecessarily suggestive and fairly conducted.

Furthermore, the photographic array shown to Rembert was fairly assembled and, in any event, the procedure was confirmatory, because Rembert had already given Detective Brust the defendant's name prior to viewing the photographs.

Accordingly, the defendant's motion to suppress is denied in its entirety.

SO ORDERED

JOEL M. GOLDBERG

JUDGE