Opinion
2017–06039 Ind. No. 10191/15
06-26-2019
The PEOPLE, etc., Respondent, v. Eric IBARGUEN, Appellant.
Paul Skip Laisure, New York, N.Y. (Benjamin Welikson of counsel), for appellant. John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Kathryn E. Mullen of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Benjamin Welikson of counsel), for appellant.
John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Kathryn E. Mullen of counsel), for respondent.
MARK C. DILLON, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, BETSY BARROS, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Gene Lopez, J.), rendered May 9, 2017, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, without a hearing (Toko Serita, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.
ORDERED that the judgment is affirmed.
We agree with the Supreme Court's determination to deny that branch of the defendant's omnibus motion which was to suppress physical evidence without conducting a hearing (see CPL 710.60[3][a] ). The defendant failed to establish a reasonable expectation of privacy in the apartment at which he was merely a casual visitor, and thus, he lacked standing to challenge the warrantless entry and subsequent search of the premises (see People v. Ortiz, 83 N.Y.2d 840, 611 N.Y.S.2d 500, 633 N.E.2d 1104 ).
The Supreme Court should have granted the defendant's request to instruct the jury on cross-racial identification (see People v. Boone, 30 N.Y.3d 521, 69 N.Y.S.3d 215, 91 N.E.3d 1194 ; People v. Jordan, 167 A.D.3d 1044, 91 N.Y.S.3d 159 ). However, the failure to give the charge constituted harmless error, as there was overwhelming evidence of the defendant's guilt and no significant probability that the defendant would have been acquitted if not for the error (see People v. Jordan, 167 A.D.3d at 1045, 91 N.Y.S.3d 159 ).
The defendant's contention that he was deprived of a fair trial because the Supreme Court's charge regarding flight as consciousness of guilt lacked a factual predicate and was misleading is without merit, and any error in giving the charge was harmless (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; People v. Redd, 81 A.D.3d 751, 916 N.Y.S.2d 522 ).
DILLON, J.P., BALKIN, AUSTIN and BARROS, JJ., concur.