Opinion
April 26, 1991
Appeal from the Onondaga County Court, Mulroy, J.
Present — Dillon, P.J., Boomer, Green, Balio and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Viewing the evidence in the light most favorable to the People and giving it the benefit of every reasonable inference (see, People v. Malizia, 62 N.Y.2d 755, 757, cert denied 469 U.S. 932), we find that there was legally sufficient evidence that defendant had constructive possession (see, People v. Tejeda, 140 A.D.2d 985, affd 73 N.Y.2d 958) of the cocaine and gun to support his conviction of criminal possession of a controlled substance in the second degree (Penal Law § 220.18) and criminal possession of a weapon in the third degree (Penal Law § 265.02). Further, we conclude that the verdict was not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490).
We reject defendant's contention that the People's failure to raise the issue of defendant's standing to challenge the search of apartment #2 constituted a waiver of that issue. The People's failure in that regard did not relieve defendant of his initial burden of showing standing, that is, that he had a legitimate expectation of privacy in the searched premises (see, People v Wesley, 73 N.Y.2d 351, 358-359; People v. Johnson, 154 A.D.2d 932, lv denied 75 N.Y.2d 771).
Further, the hearing court did not make the requisite findings of fact and conclusions of law (see, CPL 710.60). However, since a full and fair hearing was held, we may make those findings (see, People v. Lewis, 172 A.D.2d 1020 [decided herewith]; People v. Burrows, 53 A.D.2d 1038, 1039; People v Denti, 44 A.D.2d 44, 47).
A review of the record reveals that defendant failed to establish a personal legitimate expectation of privacy in apartment #2 at 120 Wolf Street, Syracuse (see, People v Wesley, 154 A.D.2d 880, 881, lv denied 75 N.Y.2d 777). The landlord rented the apartment to a person other than defendant. Defendant did not reside there and he kept none of his clothes or items of personal property at the apartment. The apartment was entirely vacant except for a chair, a nonoperable stove and a refrigerator that faced the wall so that its door could not be opened.
We find that the sentence imposed was not harsh and excessive. We have reviewed defendant's remaining contentions and find them to be either unpreserved or, where preserved, lacking in merit.