Opinion
Decided September 8, 2011.
APPEAL, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered December 30, 2010. The Appellate Division affirmed a judgment of the Supreme Court, Monroe County (Joseph D. Valentino, J), which had convicted defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree.
On appeal from a judgment convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree, the Appellate Division concluded that Supreme Court did not err in refusing to suppress the weapon and defendant's statements to the police. The police found the weapon in a duffel bag in the bedroom closet of defendant's girlfriend during a search of the house co-leased by defendant's girlfriend and her mother. Defendant resided in the bedroom part of the time and kept personal items there. The Appellate Division noted that because defendant had the burden to allege facts sufficient to warrant suppression, the People were not precluded from raising the issue of standing for the first time on appeal, and concluded that defendant failed to establish a legitimate expectation of privacy in the duffel bag or its contents inasmuch as no evidence was presented establishing his ownership of the bag. The Appellate Division also concluded that the mother of defendant's girlfriend had actual authority to consent to the search of the bedroom and that, as the warrantless search of the bedroom was valid, the court below properly refused to suppress the weapon and defendant's statements to the police as fruit of the poisonous tree.
People v Holmes, 79 AD3d 1681, reversed.
Timothy P. Donaher, Public Defender, Rochester ( Janet C. Somes of counsel), for appellant.
Michael C. Green, District Attorney, Rochester ( Geoffrey Kaeuper of counsel), for respondent.
OPINION OF THE COURT
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order reversed and case remitted to the Appellate Division, Fourth Department, for consideration of issues raised but not determined on the appeal to that court ( see People v Hunter, 17 NY3d 725).
Concur: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES.