Opinion
2016–12758 Ind.No. 10509/14
10-02-2019
The PEOPLE, etc., Appellant, v. Gino D. SANTIAGO, Respondent. The People, etc., Appellant, v. Christopher Soto, Respondent.
John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano and Edward D. Saslaw of counsel), for appellant. Patrick Michael Megaro, Forest Hills, NY, for respondent Gino D. Santiago.
John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano and Edward D. Saslaw of counsel), for appellant.
Patrick Michael Megaro, Forest Hills, NY, for respondent Gino D. Santiago.
ALAN D. SCHEINKMAN, P.J., JEFFREY A. COHEN, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.
DECISION & ORDER Appeal by the People, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Daniel Lewis, J.), dated October 11, 2016, as, after a hearing, granted those branches of the omnibus motion of the defendant Christopher Soto which were to suppress certain physical evidence and his statements to law enforcement officials, and granted that branch of the omnibus motion of the defendant Gino D. Santiago which was to suppress certain physical evidence.
ORDERED that the order is affirmed insofar as appealed from.
On September 10, 2014, the defendant Christopher Soto was apprehended in Queens at the apartment of his aunt and of his cousin, the defendant Gino D. Santiago, by New Jersey parole officers for violations of his New Jersey parole. The New Jersey parole officers permitted Soto to re-enter the apartment to retrieve shoes and items of clothing and, thereupon, conducted a protective sweep of the apartment. The New Jersey parole officers found Santiago in a bedroom. In addition, they discovered what they suspected to be heroin in a closet. The New Jersey parole officers notified the New York City Police Department (hereinafter NYPD), and NYPD officers responded approximately half an hour later.
In response to questioning without the benefit of Miranda warnings (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 ), Soto admitted that a safe found in the bedroom of the apartment belonged to him and contained two guns. Soto signed a consent form and opened the safe at the NYPD officers' request. The NYPD officers removed two handguns, an extra magazine, and ammunition (hereinafter the firearms evidence). Soto and Santiago were both arrested and charged with, inter alia, criminal possession of a controlled substance in the third degree and criminal possession of a weapon in the second degree. Soto moved, among other things, to suppress his statements to the NYPD officers, and both defendants moved, inter alia, to suppress the firearms evidence. After a hearing, the Supreme Court, among other things, granted those branches of Soto's omnibus motion which were to suppress the firearms evidence and his oral and written statements related to that evidence, and granted that branch of Santiago's omnibus motion which was to suppress the firearms evidence. The People appeal.
"There is no legal basis for suppression ... unless the accused alleges facts that, if true, demonstrate standing to challenge the search or seizure" ( People v. Burton, 6 N.Y.3d 584, 587, 815 N.Y.S.2d 7, 848 N.E.2d 454 ; see People v. Scully, 14 N.Y.3d 861, 864, 903 N.Y.S.2d 302, 929 N.E.2d 364 ; People v. Gomez, 67 N.Y.2d 843, 845, 501 N.Y.S.2d 650, 492 N.E.2d 778 ). "Standing exists where a defendant was aggrieved by a search of a place or object in which he or she had a legitimate expectation of privacy" ( People v. Burton, 6 N.Y.3d at 587, 815 N.Y.S.2d 7, 848 N.E.2d 454 ; see People v. Scully, 14 N.Y.3d at 864, 903 N.Y.S.2d 302, 929 N.E.2d 364 ; People v. McCullum, 159 A.D.3d 8, 13, 70 N.Y.S.3d 222 ), which " ‘society recognizes as reasonable’ " ( People v. Leach, 21 N.Y.3d 969, 971, 971 N.Y.S.2d 234, 993 N.E.2d 1255, quoting People v. Ramirez–Portoreal, 88 N.Y.2d 99, 108, 643 N.Y.S.2d 502, 666 N.E.2d 207 ; see People v. McCullum, 159 A.D.3d at 13, 70 N.Y.S.3d 222 ). It is the defendant's burden to establish standing (see People v. Leach, 21 N.Y.3d at 971, 971 N.Y.S.2d 234, 993 N.E.2d 1255 ; People v. Hunter, 17 N.Y.3d 725, 926 N.Y.S.2d 401, 950 N.E.2d 137 ; People v. Scully, 14 N.Y.3d at 864, 903 N.Y.S.2d 302, 929 N.E.2d 364 ; People v. Burton, 6 N.Y.3d at 587, 815 N.Y.S.2d 7, 848 N.E.2d 454 ).
Here, Soto failed to establish that he had a reasonable expectation of privacy in the apartment of his aunt and Santiago, since Soto was merely a guest (see People v. Gonzalez, 45 A.D.3d 696, 845 N.Y.S.2d 817 ; People v. Abreu, 239 A.D.2d 424, 657 N.Y.S.2d 750 ). However, it does not follow that Soto lacked standing to challenge the search of the safe and the seizure of the firearms evidence. Soto established that he had a reasonable expectation of privacy in the locked safe, which belonged to him (see People v. Ramirez–Portoreal, 88 N.Y.2d at 111–112, 643 N.Y.S.2d 502, 666 N.E.2d 207 ; see also People v. Blacks, 153 A.D.3d 720, 722, 61 N.Y.S.3d 66 ).
"[A] parolee does ‘not surrender his [or her] constitutional rights against unreasonable searches and seizures’ merely by virtue of being on parole" ( People v. McMillan, 29 N.Y.3d 145, 148, 53 N.Y.S.3d 590, 75 N.E.3d 1151, quoting People v. Huntley, 43 N.Y.2d 175, 181, 401 N.Y.S.2d 31, 371 N.E.2d 794 ; see People v. Johnson, 54 A.D.3d 969, 970, 864 N.Y.S.2d 132 ). However, a parolee has a "reduced expectation of privacy" ( People v. McMillan, 29 N.Y.3d at 148, 53 N.Y.S.3d 590, 75 N.E.3d 1151 ). Therefore, "a parolee's constitutional right to be secure against unreasonable searches and seizures is not violated when a parole officer conducts a warrantless search that is rationally and reasonably related to the performance of the parole officer's duties" ( id. ; see People v. Purnell, 166 A.D.3d 814, 816, 88 N.Y.S.3d 86 ; People v. Vann, 92 A.D.3d 702, 702–703, 938 N.Y.S.2d 182 ; People v. Johnson, 54 A.D.3d at 970, 864 N.Y.S.2d 132 ). "[S]earches that may be reasonably justified if undertaken by a parole officer are not necessarily constitutional if undertaken by a police officer." However, " ‘in any evaluation of the reasonableness of a particular search or seizure,’ whether undertaken by parole or police officers, ‘the fact of defendant's status as a parolee is always relevant and may be critical’ " ( People v. McMillan, 29 N.Y.3d at 148–149, 53 N.Y.S.3d 590, 75 N.E.3d 1151, quoting People v. Huntley, 43 N.Y.2d at 181, 401 N.Y.S.2d 31, 371 N.E.2d 794 ).
"[T]he police may lawfully conduct a warrantless search when they have obtained the voluntary consent of a party who possesses the requisite degree of authority and control over the premises or personal property in question" ( People v. Xochimitl, 147 A.D.3d 793, 794, 47 N.Y.S.3d 339 [internal quotation marks omitted], affd 32 N.Y.3d 1026, 87 N.Y.S.3d 132, 112 N.E.3d 309 ; see People v. Gonzalez, 88 N.Y.2d 289, 293, 644 N.Y.S.2d 673, 667 N.E.2d 323 ; People v. Cosme, 48 N.Y.2d 286, 290, 422 N.Y.S.2d 652, 397 N.E.2d 1319 ; People v. Jackson, 105 A.D.3d 866, 869, 962 N.Y.S.2d 679 ; People v. Bran, 82 A.D.3d 1000, 918 N.Y.S.2d 576 ). "Consent to search is voluntary when it is a true act of the will, an unequivocal product of an essentially free and unconstrained choice" ( People v. Flynn, 165 A.D.3d 973, 975, 86 N.Y.S.3d 518 ; see People v. Marcial, 109 A.D.3d 937, 938, 971 N.Y.S.2d 328 ). " ‘Voluntariness is incompatible with official coercion, actual or implicit, overt or subtle’ " ( People v. Flynn, 165 A.D.3d at 975, 86 N.Y.S.3d 518, quoting People v. Gonzalez, 39 N.Y.2d 122, 128, 383 N.Y.S.2d 215, 347 N.E.2d 575 ), and "[t]he People's burden of proving voluntariness ‘cannot be discharged by showing no more than acquiescence to a claim of lawful authority’ " ( People v. Marcial, 109 A.D.3d at 938, 971 N.Y.S.2d 328, quoting Bumper v. North Carolina, 391 U.S. 543, 548–549, 88 S.Ct. 1788, 20 L.Ed.2d 797 ; see People v. Gonzalez, 39 N.Y.2d at 128, 383 N.Y.S.2d 215, 347 N.E.2d 575 ).
Here, although Soto had consented to searches by New Jersey parole officers as a condition of his parole, the record reveals that the NYPD officers, not the New Jersey parole officers, searched the safe after they were notified that the New Jersey parole officers found what appeared to be heroin in the apartment. Accordingly, the People cannot rely on Soto's consent given as a condition of parole to justify the warrantless search of the safe (cf. People v. McMillan, 29 N.Y.3d at 148, 53 N.Y.S.3d 590, 75 N.E.3d 1151 ). Furthermore, since the NYPD officers failed to advise Soto of his Miranda rights prior to questioning him and obtaining his consent to open the safe, his statements regarding the safe and his consent to open it cannot be characterized as voluntary (see People v. Blacks, 153 A.D.3d at 722, 61 N.Y.S.3d 66 ). Moreover, the People failed to proffer any argument as to why the warrantless search was proper as to Santiago. Accordingly, we agree with the Supreme Court's determination granting those branches of Soto's omnibus motion which were to suppress the firearms evidence and the statements made by him to the NYPD officers without the benefit of Miranda warnings, and that branch of Santiago's omnibus motion which was to suppress the firearms evidence (see People v. Stith, 69 N.Y.2d 313, 317, 514 N.Y.S.2d 201, 506 N.E.2d 911 ; People v. Henagin, 129 A.D.3d 864, 866, 12 N.Y.S.3d 120 ; People v. Perez, 88 A.D.3d 1016, 1018, 931 N.Y.S.2d 411 ).
Santiago's remaining contention is without merit (see CPL 460.10[1][a], [c] ; People v. Jones, 22 N.Y.3d 53, 57, 977 N.Y.S.2d 739, 999 N.E.2d 1184 ; People v. Washington, 86 N.Y.2d 853, 854, 633 N.Y.S.2d 476, 657 N.E.2d 497 ; People v. Schultz, 283 A.D.2d 525, 724 N.Y.S.2d 885 ).
SCHEINKMAN, P.J., COHEN, MALTESE and LASALLE, JJ., concur.