People v. Mascall

2017 NY Slip Op 559, 146 A.D.3d 689, 46 N.Y.S.3d 839

Opinion

Judgments, Supreme Court, Bronx County (Stephen J. Barrett, J.), rendered June 28, 2013, convicting defendant, upon her pleas of guilty, of criminal sale of a controlled substance in the third degree and assault in the third degree, and sentencing her to an aggregate term of six months, concurrent with five years’ probation on the drug sale count, unanimously affirmed.

The court correctly denied defendant’s suppression motion, without granting a hearing. Defendant failed to allege facts sufficient to demonstrate that an aerosol can, allegedly used as a weapon, was recovered from her person or from any place in which she had a legitimate expectation of privacy (see People v Ramirez-Portoreal, 88 NY2d 99, 108 [1996]; People v Rodriguez, 69 NY2d 159, 161 [1987]). Defendant claimed to have been unlawfully searched by the police, but she did not specifically claim that this search yielded any evidence. Despite ample opportunity to do so, she did not dispute the People’s claim that an officer recovered the can from the floor in an apartment building hallway. Defendant’s argument that her moving papers implicitly claimed that the can was taken from her person is unavailing.

Concur — Friedman, J.P., Richter, Saxe, Moskowitz and Kapnick, JJ.