This matter comes before the Court by way of Defendant’s Omnibus request for a suppression hearing with regard to the physical evidence, more than one-half (½) ounce of heroin, seized by law enforcement from a hotel room that was registered in the name of a Co-Defendant.1 The Defendant, through his counsel, claims that he had a legitimate expectation of privacy in the hotel room. The Defendant contends that the search of the hotel room without Defendant’s consent violates his right to privacy and as such, any evidence seized therein should be suppressed.The People contend that Defendant failed to establish that he had a legitimate expectation of privacy in the subject hotel room. The People argue that the Defendant did not submit any affidavit in support of his suppression application. Thus, the Defendant does not allege a legitimate expectation of privacy in the hotel room. The Defendant relies upon a theory of automatic standing present in a drug possession charge, which the People submit was abrogated by the Court of Appeals decision in People v. Ponder, 54 NY2d 160 (Ct App 1981) and under Criminal Procedure Law §710.60 and therefore does not apply in the State of New York. Further, the People indicate that there is no legitimate expectation of privacy in a hotel room solely set up for illicit commercial purposes, as in this case, the distribution of heroin. As such, the Defendant does not have standing to bring a motion to suppress the evidence seized therein by law enforcement.The Defendant then argues that the People, by opposing the Defendant’s standing, is thereby in effect asserting that the Defendant has no possessory interest in the contraband seized from the hotel room. The People argue that the fact that Defendant has no standing to seek suppression does not negate the ability for the People to indict the Defendant with possessory offenses based upon the evidence seized in the subject hotel room.2A defendant may only challenge the validity of a warrantless search that led to the seizure of evidence if he can show that he had a personal legitimate expectation of privacy in the area searched. Ponder, supra. “As a general principle ‘it is entirely proper to require of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he establish, that he himself was the victim of an invasion of privacy.’” Id, citing Jones v. United States, 362 US 257 at 261. See also, People v. Whitfield, 81 NY2d 904 (Ct App 1993). The defendant has the burden of demonstrating his own constitutional interest in seeking suppression. People v. Wesley, 73 NY2d 351 (Ct App 1989). See also, People v. Rodriguez, 69 NY2d 159 (Ct App 1987) ["The burden of demonstrating the factors and their reasonableness to support the legal conclusion (of a reasonable expectation of privacy) is on the defendant."]; and People v. Bell, 5 AD3d 858 (3d Dept 2004) [" (Defendant's) failure to establish a legitimate expectation of privacy in the premises precludes any challenge to her arrest based upon unlawful entry."].This requirement has also been codified in Criminal Procedure Law §710.60, wherein the defendant seeking suppression of evidence has the initial burden of showing a sufficient basis for the application as supported by sworn allegations of fact, and such grounds necessarily include establishing standing by evidencing a legitimate expectation of privacy in the searched premises. CPL §710.60. See also, Whitfield, supra. As set forth in Wesley, supra:Placing upon a defendant the burden of asserting an interest in the searched premises at the pretrial stage is fair, sensible, and consonant with this court’s long-established view that Fourth Amendment rights are personal…it is after all the defendant alone who actually knows his or her connection with the searched area. It is thus neither unjust nor unreasonable to require that the defendant set forth that interest, protected by the rule that such testimony cannot be used to prove the charges. Wesley, supra at 359.While a hotel guest has a Fourth Amendment protection and an expectation of privacy during his rental period of his own room, it is well settled that a defendant to whom the hotel room is not registered must establish that he had a legitimate expectation of privacy to that particular hotel room. People v. Brooks, 155 AD3d 1429 (3d Dept 2017)["The hotel room was not registered in defendant's name…and it was incumbent upon defendant to show that he had 'a legitimate expectation of privacy in the premises'" citation omitted]; People v. Lopez, 104 AD3d 876 (2d Dept 2013)["The County Court properly denied that branch of defendant's omnibus motion which was to suppress as the fruit of an unlawful warrantless arrest inside a motel room registered to another individual…The Defendant failed to meet his burden of demonstrating a legitimate expectation of privacy in the motel room."]; People v. Zappulla, 282 AD2d 696 (2d Dept 2001) ["The defendant lacked standing to challenge the search as he failed to establish that he had a reasonable expectation of privacy in the motel room. His possession of a key to the room at the time of his arrest was insufficient to confer standing, particularly as the room was not registered to him…"]. This is also the case where the hotel room is set up for commercial purposes. Brooks, supra["we find that defendant's minimal, commercial connection to the hotel room (facilitating the sale of crack cocaine by ferrying the drugs and buy money between adjacent hotel rooms) did not afford him a legitimate expectation of privacy therein"].Upon review of the Omnibus papers submitted by Defendant, there are no sworn allegations set forth sufficient to confer standing to Defendant to move to suppress the evidence seized inside the subject hotel room. Defendant has the burden of demonstrating that he had a personal, legitimate expectation of privacy in the hotel room registered to the Co-Defendant, who consented to a search of the hotel room. The bare, boilerplate allegations set forth by Defendant in his Omnibus Motion do not support a finding that Defendant has standing to seek suppression of the evidence seized in the subject hotel room, as Defendant failed to set forth any factors upon which this Court could reasonably determine thatDefendant had a legitimate expectation of privacy in the subject hotel room. Defendant’s contentions that his Indictment includes charges of possession and therefore he has automatic standing to challenge the search and seizure is without merit and is flatly rejected by this Court. Wesley, supra.Based upon the foregoing, it is herebyORDERED, that Defendant’s request for a hearing on his motion to suppress is denied in its entirety.This constitutes the Decision and Order of this Court.Dated: June 25, 2018Monticello, New York
