Opinion
November 6, 1989
Appeal from the Supreme Court, Kings County (Fisher, J.).
Ordered that the matter is remitted to the Supreme Court, Kings County, to hear and report on that branch of the defendant's omnibus motion which was to suppress physical evidence, and the appeal is held in abeyance in the interim. The Supreme Court, Kings County, is to file its report with all convenient speed.
The defendant moved, as part of his omnibus motion, inter alia, to suppress a substance containing cocaine and various articles of drug paraphernalia found in an apartment at which the defendant was visiting. In the defendant's moving papers, he alleged that the police did not have probable cause to enter the apartment without a warrant. The court refused to grant the defendant a suppression hearing on the ground that he lacked standing to challenge the search because he failed to assert either a possessory or a proprietary interest in the apartment. We find that it was error to deny that branch of the defendant's omnibus motion which sought suppression without a hearing. The People may not base a case against the defendant solely on the statutory constructive possession presumption pursuant to Penal Law § 220.25 (2), and simultaneously deprive him of the right to challenge the search of the apartment (see, People v Millan, 69 N.Y.2d 514; cf., People v Wesley, 73 N.Y.2d 351, 361). Kunzeman, J.P., Rubin, Harwood and Balletta, JJ., concur.