Opinion
July 15, 1993
Appeal from the Supreme Court, Bronx County (Joseph Cerbone, J.).
We defer to the findings of the hearing court that police, during the early morning hours, observed the butt of a gun protruding from co-defendant's clothing. The officers pursued co-defendant through, and out of, an apartment in which defendant also had been present. During defendant's own flight, he discarded a bag which was found to contain rock cocaine. During the flight, co-defendant discarded his gun. Defendant failed to adduce any evidence of a personal connection with the apartment sufficient to rise to the level of an expectation of privacy therein (see, People v. Plower, 176 A.D.2d 214, 215, lv denied 79 N.Y.2d 830). We find no basis to disturb the hearing court's findings of fact. Since defendant has failed to demonstrate any connection with the apartment beyond that of his mere transient presence, he has no standing to challenge the warrantless entry of police (People v. Rodriguez, 69 N.Y.2d 159; People v. Ortiz, 190 A.D.2d 580, lv granted 81 N.Y.2d 895).
Defendant has failed to preserve his claim that the court's reasonable doubt instruction shifted the burden of proof (People v. Thomas, 50 N.Y.2d 467), and we decline to review in the interest of justice. If we were to review, we would conclude, under the authority of People v. Antommarchi ( 80 N.Y.2d 247, 251-252), that the court did not err by charging the jury that "a reasonable doubt is a doubt based upon a reason. It is a doubt for which a juror could give a reason, if he or she were called upon to do so in the jury room."
We have considered defendant's remaining contentions and find them to be without merit.
Concur — Murphy, P.J., Carro, Wallach, Kassal and Nardelli, JJ.