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District Attorney has advanced two additional arguments


A Queens Criminal Gun Crime Lawyer said that, the defendant is charged, inter alia, with criminal sale of a controlled substance in the third degree, criminal possession of a weapon in the third degree and robbery in the third degree. Among the issues presented to this Court during the combined Wade/ Mapp hearing, were defendant’s standing to challenge the search warrant and the propriety of post-arrest stationhouse identification by the undercover police officer. Former counsel, in addition to moving to suppress the identification, has also moved to suppress physical evidence, but failed to specifically request controversion of the search warrant. This Court permitted substitute counsel to seek relief, albeit late, and directed a hearing.

The People called three. As will be more fully explained later, after both parties had rested, but prior to the rendering of a decision, it was discovered that the Detective had aided in defendant’s booking procedure by fingerprinting him. Upon defendant’s application, the Court re-opened the hearing to receive testimony concerning this additional viewing of defendant by the detective and what influence, if any, it had on his in-court identification.

A Queens Criminal Lawyer said that, the Court finds the testimony of the People’s witnesses credible and not marred by any serious inconsistencies. The Court further finds that on November 1, 1990, while acting as an undercover police officer, Detective was introduced to defendant in apartment 6B, at 41-13 10th Street, by a female,. He observed defendant, who was introduced to him as “B,” for four to five minutes, during which time, defendant removed his jacket, revealing a .38 caliber gun in his waistband. The detective again met defendant on November 5, 1990, initially, in apartment 6B, and then in the rear of the project, at 41-14 10th Street, where defendant agreed to sell him 1/8 of an ounce of cocaine. He requested the money first but, when he refused, defendant became angry, went into the building and, when he returned, he threw a packet, containing cocaine, at him. When he took $20 from his wallet, defendant attempted to grab the entire wallet, taking $60.00 in currency and telling him to leave or he would be “a dead man.” This incident lasted approximately 15 minutes.
The issue in this case is whether criminal defendant’s request to suppress the evidence against him should be granted.

The Court finds that defendant does have standing to challenge the search warrant. Undisputed on this record is that, at the time the warrant was executed, defendant was, at least, an overnight guest and, at most, a full-time resident of the apartment. According to the search warrant application, “B,” identified as defendant, told the detective that he [“B”] lived in the apartment and that he “could come back anytime.” The police reports, while not in evidence, are part of the Court file, and reflect defendant’s residence as the apartment in question. Finally, the underlying criminal circumstances of the arrest, wherein defendant was found in the apartment, in bed, at 6:30 in the morning, would lead any reasonable person to conclude that he was, if not a permanent or semi-permanent resident, at least an overnight guest.

Having established defendant’s status in the apartment, it is clear that, under these circumstances, he had a legitimate expectation of privacy, thus conferring upon him requisite standing to challenge the warrantnTo hold that an overnight guest has a legitimate expectation of privacy in his host’s home merely recognizes the everyday expectations of privacy that we all share. We think that society recognizes that a houseguest has a legitimate expectation of privacy in his host’s home.

Accordingly, criminal defendant has standing to challenge the warrant.

The District Attorney has advanced two additional arguments in an attempt to prevent defendant from challenging the warrant. First, he claims that, since dealt with a warrantless entry and did not concern the execution of a search warrant, it is, therefore, inapplicable to the case at bar. Accordingly, the fact that this defendant has moved to controvert execution of a warrant, rather than challenge a warrantless entry, is without dispositive effect. The second argument advanced by the People is that the critical date, in terms of standing, is the date of issuance of the warrant, not its execution. Thus, the People contend that, inasmuch as criminal defendant cannot demonstrate requisite standing on the day the warrant was issued, he may not challenge the underlying showing of probable cause for the issuance of the warrant, notwithstanding that he may have had standing on the date of its execution.

In the present case, the People have not demonstrated the existence of any exigent circumstances which would sustain as confirmatory the stationhouse identification. Here, as in Gordon, there was an extensive time delay between the buy and the arrest; the show-up was highly suggestive; and, clearly, it was not “an integral police procedure.” Inasmuch as there were no exigent circumstances here and it would not have been unduly burdensome to have conducted a lineup, the stationhouse show-up must be suppressed.

Nevertheless, notwithstanding the improper show-up, the Court finds that there was an independent source for the in court identification by the Detective. The factors to be considered by the Court in determining whether an independent source does exist are the prior opportunities to observe the alleged criminal act, the discrepancies, if any, of descriptions given by the witness, the failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the identification procedure. In the later cases, additional factors were listed by the Supreme Court which would allow an otherwise suggestive identification procedure to be admitted because the identification was reliable. These additional criteria are the witness’ degree of attention during the crime and the level of certainty at the confrontation. Taking all these factors into consideration, this Court cannot find that, under a totality of the circumstances, there is “a very substantial likelihood of irreparable misidentification”. Detective had an opportunity to view defendant for four or five minutes on November 1, 1990, in a well-lighted apartment and, again, for approximately 15 minutes, on November 5, 1990. He was in close proximity to the defendant, in the transactions leading to the sale, talking to him face-to-face. Under these circumstances, including the detective’s experience and training as a police officer, plainly, his identification is based upon an independent source, rather than the stationhouse show-up.

While this Criminal Court does not condone the People’s failure on the initial hearing to elicit testimony concerning his fingerprinting of the defendant, it cannot be said that such procedure had any effect upon him in-court identification here since, as previously noted, the two prior encounters between Rocco and defendant were of such duration and under such circumstances so as to render the identification reliable.

Accordingly, upon the foregoing grounds, defendant’s motion to suppress physical evidence and to controvert the search warrant is denied in all respects. That branch of the motion to suppress both the in-court and out-of-court identifications is granted only to the extent that the stationhouse show-up is suppressed but, in all other respects, the motion is denied.

Criminal possession of a weapon is a serious offense, seek the assistance of a Queens Criminal Attorney and Queens Possession of a Weapon Attorney at Stephen Bilkis and Associates.

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