Opinion
7830 Ind. 2398/12
12-06-2018
The PEOPLE of the State of New York, Respondent, v. Willis FEBO, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Justine M. Luongo and Amy Donner, of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Aaron Zucker of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Justine M. Luongo and Amy Donner, of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Aaron Zucker of counsel), for respondent.
Friedman, J.P., Kapnick, Webber, Kahn, Kern, JJ.
Defendant's suppression motion was properly denied. Defendant lacked standing to challenge the search of a backpack, which contained a revolver and ammunition, because he did not establish that he retained a reasonable expectation of privacy in the bag. As the police lawfully approached defendant, he opened the front passenger door of a driver-occupied parked car, threw the backpack inside, closed the door, and stepped away from the car. Defendant did not meet his burden of proof with respect to standing as he failed to establish any connection with the car and he could not reasonably expect that the driver and others would not have access to the bag (see People v. Dingle, 254 A.D.2d 131, 679 N.Y.S.2d 19 [1st Dept. 1998], lv denied 93 N.Y.2d 852, 688 N.Y.S.2d 499, 710 N.E.2d 1098 [1999] ; People v. DeLaCruz, 242 A.D.2d 410, 413, 662 N.Y.S.2d 300 [1st Dept. 1997] ). Defendant's suggestion that the driver's failure to react negatively to the deposit of the bag implies some sort of bailment is speculative, and in any event would not establish a reasonable expectation of privacy.
In any event, even if defendant had standing to challenge the search, he abandoned the bag by divesting himself of it and disclaiming ownership (see People v. Nobles, 63 A.D.3d 528, 882 N.Y.S.2d 25 [1st Dept. 2009], lv denied 13 N.Y.3d 798, 887 N.Y.S.2d 548, 916 N.E.2d 443 [2009] ; People v. Flynn, 15 A.D.3d 177, 178–179, 789 N.Y.S.2d 33 [1st Dept. 2005], lv denied 4 N.Y.3d 853, 797 N.Y.S.2d 427, 830 N.E.2d 326 [2005] ), and the abandonment was not precipitated by unlawful police activity (see People v. Ramirez–Portoreal, 88 N.Y.2d 99, 110, 643 N.Y.S.2d 502, 666 N.E.2d 207 [1996] ).