Opinion
501 KA 17–00649
05-01-2020
The PEOPLE of the State of New York, Respondent, v. Javier VALENTIN, Jr., Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (DARIENN P. BALIN OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (DARIENN P. BALIN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of burglary in the second degree ( Penal Law § 140.25 [2] ) and petit larceny (§ 155.25). We affirm.
The trial evidence established that, within 30 minutes and five blocks of the charged burglary, defendant was discovered in possession of the property stolen during the incident. Moreover, defendant's statements to his cousin on the day in question evinced consciousness of guilt. We thus reject defendant's contention that the evidence is legally insufficient with respect to the element of identity (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we likewise conclude that the verdict is not against the weight of the evidence as to identity (see People v. Carmel , 138 A.D.3d 1448, 1449, 29 N.Y.S.3d 730 [4th Dept. 2016], lv denied 28 N.Y.3d 969, 43 N.Y.S.3d 257, 66 N.E.3d 3 [2016] ; People v. Hall , 57 A.D.3d 1222, 1226, 870 N.Y.S.2d 508 [3d Dept. 2008], lv denied 12 N.Y.3d 817, 881 N.Y.S.2d 24, 908 N.E.2d 932 [2009] ; People v. Mangual , 13 A.D.3d 734, 736, 785 N.Y.S.2d 785 [3d Dept. 2004], lv denied 4 N.Y.3d 800, 795 N.Y.S.2d 176, 828 N.E.2d 92 [2005] ; see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
We reject defendant's further contention that Supreme Court erred in refusing to suppress the contents of a backpack stolen during the burglary. As a matter of federal constitutional law, a person lacks standing to challenge a warrantless search of stolen property that he or she knowingly possessed because any subjective expectation of privacy in such property is not legitimate (see United States v. Tropiano , 50 F.3d 157, 161–162 [2d Cir. 1995] ; see also United States v. Caymen , 404 F.3d 1196, 1200 [9th Cir. 2005] ). The same rule applies under New York law (see People v. Ladson , 298 A.D.2d 314, 315, 749 N.Y.S.2d 22 [1st Dept. 2002], lv denied 99 N.Y.2d 616, 757 N.Y.S.2d 827, 787 N.E.2d 1173 [2003] ; People v. Brown , 244 A.D.2d 348, 348, 663 N.Y.S.2d 879 [2d Dept. 1997], lv. denied 91 N.Y.2d 870, 668 N.Y.S.2d 568, 691 N.E.2d 640 [1997] ; People v. Hernandez , 218 A.D.2d 167, 170, 639 N.Y.S.2d 423 [2d Dept. 1996], lv denied 88 N.Y.2d 936, 1068, 647 N.Y.S.2d 170, 670 N.E.2d 454 [1996] ). Here, defendant concedes that the subject backpack was stolen and that he knowingly possessed such stolen property. The court thus properly determined that defendant lacked standing to challenge the search of the stolen backpack.
Contrary to defendant's related contention, the court did not rely impermissibly on evidence outside the record in refusing to suppress the contents of the backpack. As the People correctly note, a police officer testified at the suppression hearing that, shortly after the backpack was searched, the victim identified the backpack and its contents as the property stolen during the burglary. The victim's hearsay identification of the stolen property was admissible at the suppression hearing (see CPL 710.60[4] ), and the fact that she identified the stolen property after the backpack was searched is of no moment in evaluating defendant's standing to challenge that search (see generally People v. Gonzalez , 68 N.Y.2d 950, 951, 510 N.Y.S.2d 86, 502 N.E.2d 1001 [1986] ). For purposes of standing, what matters is whether the searched property was stolen, not when the police learned that the searched property was stolen (see generally id. ).
Defendant's statutory speedy trial argument is unpreserved for appellate review because he never moved to dismiss the indictment on that ground (see People v. Hardy , 47 N.Y.2d 500, 505, 419 N.Y.S.2d 49, 392 N.E.2d 1233 [1979] ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see People v. Bailey , 179 A.D.3d 1518, 1519, 118 N.Y.S.3d 855 [4th Dept. 2020] ). Moreover, inasmuch as defendant's speedy trial argument is not "clear cut," defense counsel was not ineffective in failing to move to dismiss on that ground ( People v. Brunner , 16 N.Y.3d 820, 821, 922 N.Y.S.2d 248, 947 N.E.2d 139 [2011] ).
Defendant's further contention that the court omitted a portion of the juror oath required by CPL 270.15(2) is unpreserved for appellate review (see People v. Mack , 135 A.D.3d 962, 963–964, 24 N.Y.S.3d 381 [2d Dept. 2016], lv denied 27 N.Y.3d 1002, 38 N.Y.S.3d 111, 59 N.E.3d 1223 [2016] ), and his contention does not raise a mode of proceedings error (see generally People v. Chancey , 127 A.D.3d 1409, 1412, 8 N.Y.S.3d 451 [3d Dept. 2015], lv denied 25 N.Y.3d 1199, 16 N.Y.S.3d 522, 37 N.E.3d 1165 [2015] ). Defendant's reliance on People v. Hoffler, 53 A.D.3d 116, 860 N.Y.S.2d 266 [3d Dept. 2008], lv denied 11 N.Y.3d 832, 868 N.Y.S.2d 607, 897 N.E.2d 1091 [2008] is unavailing because the oath error in that case was preserved (see id. at 121, 860 N.Y.S.2d 266 ). Moreover, defense counsel was not ineffective in failing to object to the purported technical error with respect to the oath (see People v. Davis , 106 A.D.3d 1510, 1511, 964 N.Y.S.2d 856 [4th Dept. 2013], lv denied 21 N.Y.3d 1073, 974 N.Y.S.2d 322, 997 N.E.2d 147 [2013] ).
The sentence is not unduly harsh or severe. We reject defendant's remaining contentions.