Opinion
6510 Ind. 512/15
05-10-2018
The PEOPLE of the State of New York, Respondent, v. Thomas VINSON, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Jacqueline A. Meese–Martinez of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Oliver McDonald of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Jacqueline A. Meese–Martinez of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Oliver McDonald of counsel), for respondent.
Richter, J.P., Manzanet–Daniels, Webber, Oing, Moulton, JJ.
Appeal from judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered November 22, 2016, convicting defendant, after a jury trial, of tampering with physical evidence and criminal possession of a controlled substance in the seventh degree, and sentencing him, as a second felony offender, to an aggregate term of 1½ to 3 years, held in abeyance, and the matter remanded to Supreme Court for determination, based upon the evidence presented at the suppression hearing, of the issues raised at the hearing but not determined therein.
The court erred in denying defendant's suppression motion on the ground that the police entrance into a single-use restroom located in an adult film and novelty store was not a "search" for purposes of the Fourth Amendment. We conclude that, once he closed the door, defendant had a reasonable expectation of privacy while using the small, single-use restroom because at that point he was "entitled to assume that while inside he ... will not be viewed by others" ( People v. Mercado, 68 N.Y.2d 874, 876, 508 N.Y.S.2d 419, 501 N.E.2d 27 [1986], cert denied 479 U.S. 1095, 107 S.Ct. 1313, 94 L.Ed.2d 166 [1987] ; see People v. Milom, 75 A.D.2d 68, 70, 428 N.Y.S.2d 678 [1st Dept. 1980] ; People v. Hemmings, 35 Misc.3d 298, 300–303, 937 N.Y.S.2d 549 [Sup. Ct., N.Y. County 2012] ). The closed door of the restroom was comparable to closed bathroom stalls in public restrooms, where a reasonable expectation of privacy exists (see Milom, 75 A.D.2d at 70, 428 N.Y.S.2d 678 ). This expectation of privacy was not negated by the facts that the restroom was located in a commercial establishment and was unlocked (see Mercado, 68 N.Y.2d at 876, 508 N.Y.S.2d 419, 501 N.E.2d 27 ["(o)nce the door is closed " a person may have a reasonable expectation of privacy (emphasis added) ]; Milom, 75 A.D.2d at 70, 428 N.Y.S.2d 678 ; Hemmings, 35 Misc.3d at 302–303, 937 N.Y.S.2d 549 ["(t)he absence of a lock is not a determinative factor in deciding whether a person has a reasonable expectation of privacy in an area"] ).
In the alternative, the People argue, as they did at the hearing, that the police entrance into the restroom was reasonable because it was based on probable cause to suspect that there was drug use occurring inside. However, because "the hearing court did not rule on this issue in denying the suppression motion, and therefore did not rule adversely against defendant on this point, we may not reach it on this appeal" ( People v. Simmons, 151 A.D.3d 628, 629, 58 N.Y.S.3d 329 [1st Dept. 2017] ). Accordingly, we hold the appeal in abeyance and remand for determination, based on the hearing minutes, of the issue raised at the hearing, but not decided (see id. ). At this stage of the appeal, we do not address defendant's remaining contentions.