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Decided on August 16, 2007
Criminal Court of the City of New York, New York County

2007NY014812

The Defendant was represented by:
Debra Sloane, Esq.
The Legal Aid Society
49 Thomas Street
New York, New York 10013
The People were represented by:

Annie Siegel, Esq.
Assistant District Attorney
New York County District Attorney's Office
One Hogan Place
New York, New York 10013
Anthony J. Ferrara, J.
The defendant is charged with criminal sale of marijuana in the fifth degree (PL 221.35) and criminal possession of marijuana in the fifth degree (PL 221.10[1]). He has moved for: 1) suppression of any and all physical evidence recovered as a result of an alleged illegal search and seizure or, in the alternative, a Mapp/Dunaway hearing, 2) precluding the People from introducing evidence of any statement or identification testimony for which proper notice has not been given, 3) suppression of any and all testimony regarding observations of the defendant's conduct as fruits on an illegal seizure or, in the alternative a Dunaway hearing, and 4) precluding the use at trial of defendant's prior criminal history or uncharged criminal, vicious, or immoral conduct. The People filed their Response and Voluntary Disclosure Form ("VDF") on June 28, 2007.
The complaint alleges that on February 21, 2007, at about 6:35 p.m. near the corner of St. Nicholas Avenue and West 171th Street, a police officer observed the defendant participate in two marijuana sales. The allegations in the complaint for each sale are essentially the same: 1) a separately charged individual approached the defendant on the sidewalk and handed the [*2]defendant United States Currency, 2) the defendant walked across the street and removed items from underneath a trash can on the sidewalk, and 3) the defendant walked back to the separately charged individual and handed each a small item. The complaint further alleges that police officers recovered bags of marijuana from both of the separately charged individuals and five bags of marijuana from under the trash can. The People filed positive field tests for the marijuana recovered from the separately charged individuals and for the marijuana found under the trash can. The VDF indicates that the People intend to introduce against the defendant at trial all of the marijuana referred to in the complaint. The defendant alleges that he was minding his own business and not engaged in any suspicious or unlawful conduct when he was seized and searched by the police. The court action sheet indicates that the People did not give Criminal Procedure Law 710.30 notice at arraignment.
Defendant's motion is decided as follows:
Motion to Suppress Physical Evidence
The defendant moved to suppress any and all tangible evidence seized as a result of defendant's arrest. The VDF lists marijuana recovered from both of the separately charged individuals and marijuana recovered from under the trash can as evidence that the People intend to introduce against the defendant at trial. A motion to suppress physical evidence must include sworn allegations of fact establishing the defendant's standing to challenge a search and seizure of property (see People v. Wesley 73 NY2d 351 [1989]). While a defendant may rely on the allegations in the complaint in order to establish standing (see People v. Burton, 6 NY3d 584 [2006] [defendant's claim that he was stopped and searched without legal justification in conjunction with the police claim that drugs were recovered from the defendant sufficient to establish standing]), a defendant must establish a legitimate expectation of privacy in the premises or object searched (see People v. Ramirez-Portoreal, 88 NY2d 99 [1996]). A court will evaluate the sufficiency of defendant's allegations in relation to: 1) the face of the pleading; 2) the context of the motion; and 3) the defendant's access to information (see People v. Mendoza, 82 NY2d 415, 426 [1993]). A court may deny defendant's request for a hearing when the defendant's factual allegations do not support the grounds alleged for suppression as a matter of law (see CPL 710.60[2]; People v. Mendoza, 82 NY2d 415 [1993]).
The People argue that the defendant lacks standing to suppress the marijuana seized from the person of the two other separately charged individuals and the marijuana seized from under the trash can. The defendant argues that he has standing to contest the seizure of the marijuana recovered from under the trash can because he is alleged in the complaint to have possessed the marijuana. However, a defendant may possess contraband and still lack standing to seek suppression if the defendant lacked a legitimate expectation of privacy in the place searched (see People v. Ramirez-Portoreal, 88 NY2d 99 [1996]; Rawlings v. Kentucky, 448 U.S. 98 [1980]). A legitimate expectation of privacy exists where defendant has manifested a subjective expectation of privacy that society recognizes as objectively reasonable (see People v. Reynolds, 71 NY2d 552, 557 [1988]). Society does not recognize any legitimate expectation of privacy in garbage on a sidewalk (see California v. Greenwood, 486 U.S. 35, 39 [1988]; Ramirez-Portoreal, 88 NY2d at 113). Furthermore, a defendant lacks standing to move to suppress physical evidence unless the defendant was the victim of an invasion of privacy (see People v. Ponder, 54 NY2d 165, 165 [1981]), and it is a "defendant's burden to demonstrate his or her own constitutional interest in [*3]seeking suppression" (see People v Rodriguez, 69 NY2d 159, 358 [1978]). The defendant does not have a legitimate expectation of privacy in the person of the two separately charged individuals. Defendant's motion to suppress the marijuana recovered from the under the trash can and from the two other individuals, or in the alternative for a Mapp hearing, is denied.
Motion to Suppress Observations of Defendant's Conduct
The defendant also moves to suppress any and all testimony regarding observation of the defendant's conduct as fruits on an illegal seizure or, in the alternative a Dunaway hearing relying on People v. Rossi (80 NY2d 952 [1992]). In Rossi, the defendant was unlawfully arrested in the hallway outside a room before police officers subsequently executed a valid search warrant (see Rossi, 80 NY2d at 954). The Court of Appeals reversed the defendant's conviction and dismissed the indictment because the arresting officer's testimony regarding the defendant's post arrest conduct was the only evidence connecting the defendant to the validly seized contraband and must be suppressed as the fruit of an illegal arrest (id.) In this case, the only observations in the complaint or VDF are of defendant's conduct on a public street prior to his arrest. There are no allegations in the complaint or in defendant's motions of any post arrest police observations of the defendant. Defendant's motion to suppress any and all testimony regarding the defendant's conduct, or in the alternative for a Dunaway hearing, is denied.
Motion to Preclude Unnoticed Statements and Unnoticed Identification Testimony
The Response and VDF filed by the People show that the People do not intend to offer at trial any unnoticed statements made by the defendant or unnoticed identification testimony. The defendant's motion to preclude unnoticed statement evidence and unnoticed identification evidence is denied as premature with leave to renew in the event the People attempt to offer either.
Motion for a Bill of Particulars and Discovery
Defendant's motion for a Bill of Particulars and additional discovery is denied. The VDF is sufficient.
Sandoval Motion
Defendant's motion to preclude the use of defendant's criminal history or uncharged bad acts is referred to the trial court.
The People are reminded of their continuing obligation to supply Brady material.
To the extent not addressed herein, the remainder of the motions are denied.This opinion constitutes the decision and order of the Court.
Dated:New York, New York August 16, 2007
ANTHONY J. FERRARA

Judge of the Criminal Court

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