*1 APPEAL by` the defendant from a judgment of the Supreme Court (Michael A. Gary, J.), rendered March 25, 2013, and entered in Kings County, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (John G. Ingram, J.), of that branch of the defendant’s omnibus motion which was to suppress physical evidence.*2
JEFFREY COHEN, J.OPINION & ORDERThis appeal raises an issue of first impression: whether an occupant of a leasehold, after a warrant of eviction has been issued, retains the protections of the Fourth Amendment to the United States Constitution when a New York City Marshal tenders “legal possession” of the leasehold to a landlord without a physical eviction. We hold that it does not.It is undisputed that at some point in 2011, the defendant came to live in a bedroom within an apartment leased by Tanzania Mosley, and shared by Mosley’s husband, Bobby Taybron, and Mosley’s two children. The defendant possessed both a key to the apartment and a separate key to his bedroom.On January 26, 2012, all of the occupants of the apartment were effectively evicted by the execution of a “legal possession,” wherein a New York City Marshal (hereinafter the City Marshal) changed the locks on the apartment, rendering all the occupants “out of possession” of the apartment, yet leaving all their personal property therein.Later the same day, two police officers on patrol were asked to investigate a claim of trespassing within the apartment. A building security guard provided the responding officers with the notice of eviction, advised them that the eviction had occurred at the apartment earlier that day, and gave the officers the keys to the apartment. However, when the officers attempted to enter the apartment using the keys, pressure from the other side of the door initially prevented the door from opening. Ultimately, the officers determined that a person was inside the apartment pushing on the door to prevent the door from being opened. That person eventually stopped pushing on the door, and the officers opened the door and saw a man, later identified as Taybron, running out the back door of the apartment. The officers chased Taybron and caught him.After Taybron had been handcuffed, the officers returned to the apartment and conducted a further search to ensure that no one else was trespassing in the apartment. The officers searched all
