People v. Jose

—Judgment, Supreme Court, New York County (Herbert Adlerberg, J., on suppres [402] sion motion; Harold Beeler, J., at jury trial and sentence), rendered May 12, 1995, convicting defendant of criminal possession of a controlled substance in the first and third degrees, criminal possession of a weapon in the third degree, and two counts of criminally using drug paraphernalia in the second degree, and sentencing him to concurrent prison terms of 15 years to life, 1 to 3 years, 1 to 3 years, 1 year and 1 year, respectively, affirmed. We previously held defendant’s appeal from his judgment of conviction in abeyance and remanded the matter for a Mapp hearing on the ground that it was error to summarily deny defendant’s motion in this respect (239 AD2d 172). In so doing, we in no way intended to suggest, much less hold conclusively, that defendant actually possessed standing merely because in his pocket at the time of his arrest was a key to the apartment in which he and two other individuals were found. Rather, all we intended to hold was that the assertion that he had such key was sufficient to warrant a hearing on the very issue of standing itself. That is, having made sufficient factual allegations to get to a hearing, defendant still had the burden at that hearing of “establishing standing by demonstrating a personal legitimate expectation of privacy (People v Wesley, 73 NY2d 351)” (People v Whitfield, 81 NY2d 904, 906; see also, People v Delgado, 204 AD2d 242, lv denied 84 NY2d 825). The hearing court on remand (Michael J. Obús, J.) was not bound, as it believed, by a finding on our part that defendant possessed standing, and its fact-finding function was not limited in this respect to whether defendant’s allegation that he had the key was truthful, particularly given that this was not disputed by the People. Based on the evidence adduced at the hearing, we find that defendant failed to sustain his burden and, accordingly, the motion to suppress, upon remand, should have been denied. The undisputed evidence revealed that defendant, Pedro Encarnación and Alberto Hernandez were inside apartment 5D, that it was Encarnación who opened the door to the police and that defendant and Hernandez were seated on the sofa when the police entered. The evidence further showed that while defendant had a key to the apartment in his pocket, the rent receipt on the coffee table was in the name of Carmen Maloon, Con Edison service was in the name of Salvatore Perez and telephone service was in yet another name, Lordes Velo. In addition, defendant told the police that he lived in apartment 5K, while the other two men lived nearby. Apart from the key, nothing connected defendant to the apartment — there was nothing in it that was identified as belonging to him. [403] Following the hearing, both sides addressed the issue of standing in their oral arguments. Thereafter, the hearing court issued a written decision, stating that our prior order had conferred standing on defendant and was “binding” on it, and that, in any event, defendant’s standing was supported by the evidence. It proceeded to find that the police entry was not justified by exigent circumstances or consent and granted the motion to suppress. Upon consideration of all the circumstances, we find that defendant’s possession of the key, failure to admit the police and presence behind the closed door of the apartment are insufficient to sustain his burden of establishing a legitimate expectation of privacy in the premises. Given the absence of anything other than the key linking him to the apartment, the evidence that others paid the rent and utility bills and the fact that someone else ultimately opened the door to the police, defendant failed to meet the two-pronged test of exhibiting a subjective expectation of privacy and demonstrating that such expectation is an objectively reasonable one recognized by society (People v Mims, 88 NY2d 99). As already noted, defendant had the burden of proof at the suppression hearing to establish his standing to challenge the police conduct at issue (People v Rodriguez, 69 NY2d 159, 163), and he could do this either by producing evidence, such as his own testimony, or by relying on the evidence presented by the People (People v Whitfield, supra, at 906). Here, defendant offered no evidence whatsoever, and the People’s evidence did not support his claim. While it is not necessary to reside in or otherwise have a permanent possessory interest in particular premises in order to have a reasonable, legitimate expectation of privacy, the mere possession of a key may not suffice to establish dominion and control over them. Here, under all the surrounding circumstances set forth above, possession of a key merely showed that defendant had temporary access to the apartment; there was no evidence explaining how he came into possession of the key or even that he had permission to have it. Moreover, standing generally requires a showing of some combination of the following factors: defendant’s status (visitor, overnight guest, relative); the length, purpose and frequency of defendant’s stays at the premises; possession of a key; and the presence of any belongings or contribution to expenses (see, e.g., People v Rodriguez, supra, 69 NY2d, at 162-163; People v Ortiz, 83 NY2d 840, 842-843; People v Geraghty, 212 AD2d 358, 359, lv denied 85 NY2d 938; People v Ramos, 206 AD2d 260). Under the circumstances in which defendant was found, the evidence regard [404] ing proprietary interest in the apartment and his admitted residence elsewhere (see, People v Singleton, 238 AD2d 146, lv denied 90 NY2d 911), the unexplained possession of a key and failure to admit the police, without more, simply do not satisfy defendant’s burden. While defendant attributes significance to defendant’s “refusal” to open the door to the police as indicia of his dominion and control, this argument is undermined by the fact that it was Encarnación who eventually opened the door and “consented” to their entry. Contrary to defendant’s claim, our decisions in People v Ramos (supra), and People v Fuentes-Borda (186 AD2d 405) do not compel a different result. In Ramos, in stark contrast to here, defendant had a reasonable expectation of privacy in his mother’s home, where he not only possessed a key and frequently stayed there but also was expected to check on the house. In Fuentes-Borda, all we held was that the court should have conducted a hearing where, over a period of hours, the police observed defendant go back and forth between two apartments, using a key both to enter and then secure one apartment, and removing baggage. In the instant case, defendant’s possession of the key entitled him to a hearing, but, as noted at the outset, he was nonetheless obligated to establish standing at the hearing (see also, People v Delgado, supra). This, in our view, he failed to do, and, accordingly, the motion to suppress should have been denied. Concur — Sullivan, J. P., Milonas and Rubin, JJ.