Opinion
11-29-2016
The PEOPLE of the State of New York, Respondent, v. Steven LEIVA, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Ellen Dille of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Catherine M. Reno of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Ellen Dille of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Catherine M. Reno of counsel), for respondent.
Judgment, Supreme Court, Bronx County (Michael J. Gross, J. at suppression motion; John S. Moore, J. at plea and sentencing), rendered June 13, 2014, convicting defendant of criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to a term of two to four years, unanimously affirmed.
Although we do not find that defendant made a valid waiver of his right to appeal (see People v. Powell, 140 A.D.3d 401, 30 N.Y.S.3d 873 [1st Dept.2016] ), we find that the motion court properly denied defendant's suppression motion, without granting a hearing. Defendant failed to offer any facts that would support an allegation that he had an objectively reasonable expectation of privacy in a bag containing a pistol and ammunition, and the prosecution's version of the incident did not support such a claim (see People v. Burton, 6 N.Y.3d 584, 587, 815 N.Y.S.2d 7, 848 N.E.2d 454 [2006] ; People v. Ramirez–Portoreal, 88 N.Y.2d 99, 110, 643 N.Y.S.2d 502, 666 N.E.2d 207 [1996] ). Furthermore, aside from the issue of standing, defendant failed to offer any facts to rebut the assertions in the felony complaint, voluntary disclosure form and the People's response to his motion, demonstrating that the police conduct was lawful, and that the codefendant abandoned the bag (see e.g. People v. Velez, 281 A.D.2d 311, 722 N.Y.S.2d 374 [1st Dept.2001], lv. denied 96 N.Y.2d 908, 730 N.Y.S.2d 807, 756 N.E.2d 95 [2001] ).
FRIEDMAN, J.P., SWEENY, SAXE, KAPNICK, GESMER, JJ., concur.