Opinion
No. 4177/11.
2013-02-27
The PEOPLE of the State of New York, Plaintiff, v. Walde VIZCAINO, Defendant.
New York County District Attorney Cyrus R. Vance Jr. (Lisa Franchini and Erica O'Brien of counsel) for the People. Mark Weinstein for the Defendant.
New York County District Attorney Cyrus R. Vance Jr. (Lisa Franchini and Erica O'Brien of counsel) for the People. Mark Weinstein for the Defendant.
DANIEL CONVISER, J.
The Defendant is charged with four counts of Robbery in the First Degree and three counts of Robbery in the Second Degree. A hearing was held before this Court to determine whether the Defendant's arrest was supported by probable cause, whether numerous items of physical property recovered from the apartment and building the Defendant was arrested in were lawfully seized and whether a show-up identification of the Defendant at the crime scene and two lineup identifications of the Defendant should be suppressed. The People called four witnesses: Police Officer Ramonita Negron, Police Officer Chris Walinski, Lieutenant Timothy Conlon and Detective Daniel Churla. The Defendant did not call any witnesses. The Court found the testimony of all of the witnesses to be credible. For the reasons stated below, Defendant's suppression motion is denied in all respects.
STATEMENT OF FACTS
Testimony of Officer Negron
Police Officer Ramonita Negron, a 6 1/2 year veteran of the NYPD testified that she was working as a uniformed patrol officer on August 19th, 2011 with her partner Officer Walinski and arrested the Defendant on that date at 500 West 175th Street in New York County. At 9:35 P.M. on that date she received a report of a robbery in progress at that location. When she arrived at the building she found the robbery victim with another officer and took over the investigation. The victim reported that he had been making a pizza delivery at the location and had been robbed at gunpoint by two people. The robbery occurred as he was going back to the elevator and a gun was put to his head. He had made a delivery to apartment 46 on the fourth floor of the building immediately prior to the robbery. He described one of the perpetrators as a Dominican man, approximately 5' 7? tall, 25–30 years old with a medium build wearing a baby blue hat. Officer Negron acknowledged that this description was not “highly unusual” with respect to Dominican people. This individual did not have the gun. The conversation took place in Spanish, which Officer Negron said she was fluent in. She then walked through the building looking for a suspect with her partner but was unable to identify anyone.
Back at the front of the building, Officer Negron saw the building superintendent and the description of the perpetrator she had received came up during a conversation with him. She recalled the description provided to the superintendent to be a Dominican man, 5' 7? tall and 25–30 years old. The superintendent then pointed her in the direction of the fourth floor, to apartment 48. He said that a new person lived in that apartment and that this person might match the perpetrator's description. Officer Negron then went with the victim, her Lieutenant and her partner to the fourth floor. She directed the victim to stay by the elevator and then she, Officer Walinski and the Lieutenant knocked on the door of apartment 48. A man who said it was his apartment opened the door and spoke with Officer Negron in Spanish. Officer Negron referred to him as the apartment “owner” but acknowledged she did not know whether or not he actually owned the apartment. When asked whether anyone else was in the apartment he said that a man who rented a room was there. Officer Negron asked if that person could come to the door and the owner said he would knock on the renter's door. The witness described the owner's demeanor as clam.
The owner pushed open the apartment door and then told Officer Negron to hold open the door while he knocked on the interior door of the renter's room. When he knocked on the bedroom door, which was about two feet away from the apartment door, no one answered but the door opened. The owner then said he thought the renter was in the bathroom which was next to the bedroom. He knocked on the bathroom door. A voice inside the bathroom said just a minute. At this point, Officer Negron was holding open the apartment door but was not physically inside the apartment. The police waited a couple of minutes. Officer Negron asked the owner if the police could enter the apartment and the owner said sure.
The Defendant then exited the bathroom and Officer Negron testified that he matched the description the victim had given of the perpetrator. Officer Negron described the man as a Dominican man, 25–30 years old, 5' 7? tall with a medium build. The victim at this time was still standing by the elevator which was pretty far from the apartment in a position where he could not see into the apartment. Officer Negron, now inside the apartment, asked the Defendant to come to the front of the apartment. Officer Negron then said to the victim that “there's someone in the apartment that might match the description that he gave” and that the victim should say “yes” or “no” with respect to whether this person was the one who had robbed him.
The victim expressed concern that the Defendant might see his face and was assured that he would not.
February 6, 2013 Transcript (“Tr.”), p. 29, ll. 15–18
Officer Negron took the victim to the building hall in front of the apartment, the victim looked into the apartment for a couple of seconds and said “yes” to Officer Negron. Officer Negron then asked her partner to ask the Defendant to turn so his side profile was visible to the victim. The victim at this point took a longer look at the Defendant and said “yes, that's him”. Both the hallway and the apartment were well lit. The victim was five feet away from the Defendant when the identification occurred. Officer Walinski then handcuffed the Defendant. Officer Negron saw Detective (now Lieutenant) Conlon enter the apartment prior to the victim's initial identification. She saw Detective Conlon and the owner conversing. At the time the victim made his identifications, Officer Negron, Officer Walinski and Detective Conlon were inside the apartment. Lieutenant Barry was outside the apartment in the hallway.
Testimony of Officer Walinski
Officer Chris Walinski, a 7 year veteran of the NPD also testified about the events leading up to the Defendant's arrest. Officer Walinski was Officer Negron's partner on that day. The vast majority of his testimony was consistent with that of Officer Negron and will not be repeated here. The following additional or inconsistent details of the encounter were reported by Officer Walinski. He said that the “owner” of the apartment was “very friendly” during his interactions with the police. He said the owner had given the police verbal permission to enter the apartment but said he did not recall the owner speaking English. He also later said, however, that he did not understand Spanish and so could not report what the owner may have said. The owner reported that his renter (the Defendant) had just recently rented the room from him. Officer Walinski testified that after the owner banged on the bathroom door and the Defendant inside said to wait a minute the officers then waited no longer than five minutes or so before the Defendant came out.
Officer Walinski had the Defendant stand to the side of Officer Walinski after the Defendant exited the bathroom. Officer Walinski stood next to the Defendant when the victim observed and identified Mr. Vizcaino. He said that his gun was not drawn and that Mr. Vizcaino was not restrained in any way during the identification. At the time, he said, there were more than four officers in the hallway outside the apartment. There were also at least four officers in the apartment at the time.
He said that after the Defendant's arrest, he observed Detective Conlon search the apartment bathroom in the company of the owner. He said United States currency was recovered in a small void against the bathroom sink and wall. Detective Conlon later gave Officer Walinski the currency and the back piece of a cell phone. The following day, Officer Walinski obtained a search warrant to search the apartment bedroom. He then returned to the apartment to conduct the search. The room had been secured by an officer in the interim. He recovered two knives, a couple of pellets and BB's, cell phones and a hat and shirt from various locations in the bedroom.
Testimony of Lieutenant Conlon
Lieutenant Timothy Conlon, an 11 year employee of the NPD testified that at the time of the Defendant's arrest he was assigned to the Criminal Intelligence Section of the Intelligence Division and worked on “crime patterns”. He described a pattern he worked on at the time, called “Pattern 99” which consisted of four robberies of pizza delivery persons in residential buildings along the Amsterdam Avenue corridor in New York County using guns or knives. He responded to the scene where the Defendant was arrested when he became aware that the robbery reported in this case was similar to the four other pattern robberies he had been investigating. He provided testimony which was consistent with that of Officers Negron and Walinski about the events which led up to the Defendant's arrest and provided the following additional information.
Lieutenant Conlon said that when the owner knocked on the bathroom door initially, a muffled voice responded, less than two minutes elapsed and then the owner knocked on the bathroom door again. After the second knock, about thirty seconds elapsed before the Defendant emerged from the bathroom. Lieutenant Conlon initially testified that after the Defendant came out of the bathroom, Officers Negron and Walinski approached him and informed him in English that there had been a crime in the hallway and asked him whether he had seen or heard anything. On cross-examination, however, he said that he had not listened to the conversation, did not know whether it was in English or Spanish and that the conversation lasted for less than a minute.
Lieutenant Conlon testified that at the time of the victim's identification only he and Officer Walinski were in the apartment with the Defendant. He said that there were four or five officers in the building hallway at the time. He said that when the Defendant emerged from the bathroom Mr. Vizcaino was not free to leave the apartment. He acknowledged that when he had been asked during his grand jury testimony whether the victim had an opportunity to view the Defendant in Detective Conlon's “custody” he had responded “yes”.
After the Defendant was placed in handcuffs, Lieutenant Conlon told the owner there had been a violent crime in the hallway and asked for permission to search the bathroom. The owner said that “of course” the police could check the bathroom and the entire apartment. The conversation took place in English. He checked the owner's driver's license which listed his address as the apartment. Detective Conlon said that the NYPD had consent to search forms but that he did not have one with him on that date, did not use one and did not typically use one where consent was given by a witness rather than a suspect. He said that when the police first spoke to the owner, his demeanor was “surprised” but “cooperative, accommodating, calm”. As the interactions continued, the owner's demeanor did not change and was “very accommodating, cooperative, and inviting”.
Tr., p. 93, ll. 10–16
He testified that he discovered U.S. currency and the back plate of a cell phone using his flashlight in a crevice where the wall and sink cabinet met in the apartment bathroom. Lieutenant Conlon asked the owner whether he or anyone kept money in the bathroom and the owner said no. He said he had to ask the owner to assist him in removing the bathroom cabinet in order to recover those items. The bathroom window was open and a scaffold in front of the building was visible. Lieutenant Conlon told the owner that an officer would have to stay in the apartment guarding the bedroom until a search warrant was obtained. This was at approximately 10.45 P.M. and the police returned with a search warrant at about 4:00 P.M. the following day. Lieutenant Conlon later recovered a cell phone located on the building scaffold in a line of sight from the bathroom window. The phone did not appear to be dirty or wet, indicating to him that it had been recently placed there. The cell phone did not have a back plate. The back cell phone plate recovered in the bathroom, however, matched the phone on the scaffold. The phone was also consistent with the phone the victim had reported stolen and the victim later indicated it was his phone. Lieutenant Conlon provided the phone to Officer Walinski.
Lieutenant Conlon participated in the search of the Defendant's bedroom pursuant to the search warrant and testified consistently with Officer Walinski regarding the items recovered in that search. He later obtained two search warrants to search the contents of the phone recovered from the Defendant's bedroom which he believed was the Defendant's phone and searched that phone in accordance with those search warrants.
Testimony of Detective Churla
Detective Daniel Churla of the Manhattan robbery squad said he was a 16 year veteran of the NYPD and that he had conducted about two hundred lineups. He said his office investigated pattern robberies which cut across different commands. He testified in detail about the investigation he had conducted into Pattern 99, in which four pizza delivery people had been robbed at knife or gun point in Washington Heights. The fifth incident identified in the pattern was the robbery for which the Defendant was arrested. He subsequently took pedigree information from the Defendant who identified his address as the apartment in which he was apprehended.
He testified that he conducted lineups in this case on August 20, 2011 at the Manhattan Robbery Squad. He initially contacted the victims who viewed the lineups by phone telling each of them in substance that the police had a suspect in custody, that he wanted the victim to view a line-up and that the lineup procedures would be explained when the lineup was conducted. The victims came to the squad on their own. He described the layout of the location in detail and the fact that witnesses are brought to a room to wait to view a lineup attended by officers. The victims were directed not to speak with each other. He said that three persons, identified for purposes of the hearing as Victims 2, 3 and 4 viewed lineups. He said the three victims were brought to the waiting area at about 11:30 A.M. and did not see the Defendant or the lineup fillers prior to the lineup.
He said that he used five fillers which he said fit the general description of the Defendant in that they were male Hispanics, in the Defendant's age range and with his general complexion. He acknowledged, however, that filler No. 2 was 46 years old. Height was not considered as a significant factor because the lineup participants were all seated. The participants wore the same shirts, a blanket was placed across their legs and a number was displayed in front of each person. The Defendant chose position four in the lineup. Photographs of the lineup were received in evidence. In each robbery, the perpetrators' head had been covered by a hat or hoodie.
At the time each victim was brought into the viewing room, they were told that they would be viewing a lineup, to say whether the victim recognized anyone and where they recognized the person from. When victim # 2 viewed the lineup he said that the Defendant was one of the persons who had robbed him and was the person with the gun. He was then brought out of the squad in a manner which did not allow him to see the other victims. Victim # 3 viewed the lineup but was unable to make an identification. Victim # 4 then viewed the lineup and identified the Defendant as the person who had robbed him. An additional victim viewed a lineup conducted on a different date but was unable to identify anyone.
CONCLUSIONS OF LAW
Credibility of Witnesses
The Defendant initially raises a specific issue regarding the credibility of the witnesses. He argues that it is not plausible to believe that police officers investigating a gun-point robbery would simply wait for several minutes for a suspect to exit a closed bathroom, rather than, for example, opening or knocking down that bathroom door or insisting that the suspect exit the bathroom immediately. The Court also questioned the credibility of the witnesses in this regard but ultimately concludes that this testimony was credible for several reasons.
First, as the prosecution pointed out, a person, even trained police officer, may have difficulty recalling the precise time-span of a brief event which occurred 1 1/2 years ago and may tend to describe such an event as taking longer than it did. Second, to believe the testimony of the witnesses was not credible, the Court would have to conclude that two police officers and a Lieutenant all conspired to lie under oath at the suppression hearing. While that is certainly possible, all things being equal, such a scenario would certainly be less likely than one in which a single officer lied.
Third, the testimony of the witnesses did not appear to have been rehearsed or tailored in any way. Indeed, the witness testimony was inconsistent in multiple respects, including how long the police waited for the Defendant to exit the bathroom, in a way which appeared to reflect the normal inconsistencies which arise when multiple witnesses honestly recall a single sequence of brief events which took place long ago. In addition the witnesses, as noted infra, recited various facts which were not favorable to the People's position at the hearing. Finally, at the moment the Defendant was asked to exit the bathroom, the police did not know or even have probable cause to believe he had committed a robbery. At most, as outlined infra, they had a reasonable suspicion that he might be the perpetrator. The victim had also told the police that the person matching the Defendant's description did not have the gun. For all of these reasons, the Court found the testimony of the officers to be credible.
Legality of Defendant's Initial Detention and Arrest
In the Court's view, the actions of the police prior to the victim's point-out of the Defendant were a Level 2 “common-law inquiry” under the four level analysis of police-citizen encounters outlined by the Court of Appeals in People v. DeBour, 40 N.Y.2d 210 (1976). This level of intrusion requires a “founded suspicion that criminal activity is afoot” and allows the police to “interfere with a citizen to the extent necessary to gain explanatory information but short of a forcible seizure”. DeBour, 40 N.Y.2d at 223.
There is no doubt that in the very brief interval during which the police spoke to the Defendant and allowed the victim to point him out Mr. Vizcaino was not free to leave his apartment. But that did not transform the inquiry into a Level 3 intrusion, a “forcible stop and detention” requiring a “reasonable suspicion” that a particular person has committed a crime. Id; People v. Santiago, 64 A.D.2d 355, 360 (1st Dept 1978); (common-law inquiry provides the police with “the right to detain, to the extent necessary to obtain explanatory information”); People v. Tolliver, 145 A.D.2d 660, 662 (2d Dept 1988), app denied,73 N.Y.2d 1022 (1989) (officer's direction to Defendant to step into the foyer of a building in order to obtain information did not elevate encounter into a “seizure”).
Even assuming, arguendo, however that the actions of the police prior to the victim's point-out of the Defendant were a Level 3 forcible stop and detention, the police had a reasonable suspicion that the Defendant had robbed the complainant and would have been justified in conducting a Level 3 intrusion at the time the show-up was conducted. The building superintendent had told the police that a man matching the description of the perpetrator lived in apartment 48. Admittedly, that description, of a male hispanic, 5' 7? tall and 25–30 years old would have likely fit multiple individuals in the vicinity of the robbery. But the police were also aware of another fact. The robbery had occurred on the fourth floor, after a delivery to apartment 46. The superintendent's information thus indicated that the individual matching the description lived in an apartment on the same floor where the robbery occurred. The superintendent also said this person was new in the building.
There is no question that the police had a founded suspicion that criminal activity was afoot when they initially questioned Mr. Vizcaino. The report of the victim alone provided that suspicion. In the Court's view, however, the police also had a reasonable suspicion that the Defendant was the perpetrator of the robbery when that report was combined with the information provided by the superintendent. Once the identified civilian victim pointed out the Defendant as the perpetrator of the robbery and there was no basis to believe the victim had fabricated his report or the identification, the police had probable cause to arrest Mr. Vizcaino. People v. Read, 74 AD3d 1245 (2d Dept 2010).
Legality of Detention and Arrest in Defendant's Apartment
Routine felony arrests cannot be effectuated in a suspect's home without an arrest warrant. Payton v. New York, 445 U.S. 573 (1980). Where, however, “a person with ostensible authority consents” to allow the police to enter a home, the Payton rule is not violated. Read, supra. The People bear a heavy burden in such cases to show that the appropriate consent was provided. The prosecution must prove that such consent and the waiver of the right to be free of police intrusion in a home absent a warrant “was, in fact, [given] freely and voluntarily”. People v. Benitez, 76 A.D.2d 196 (1st Dept 1980) (citations and quotation omitted).
In this case, the Court finds that the People sustained their heavy burden of demonstrating that consent to enter the apartment was given freely and voluntarily. First, the evidence indicated that the person who gave the consent was an adult of apparently sound mind who lived there and identified the apartment as his. Although he was described during portions of the testimony as the apartment's “owner” it was not clear whether he owned the apartment, rented the apartment and sublet a room to the Defendant or occupied the apartment with the Defendant as a roomate. Even assuming the “owner” fell into that final category, however, he had the authority to allow the police to enter his home. People v.. Sloan, 242 A.D.2d 760 (3d Dept 1997), app denied,90 N.Y.2d 1014.
The testimony of all of the witnesses indicated that the interactions between the police and the owner were consistently pleasant and cordial and that no force, threat of force or coercion of any kind was used by the police to gain entry to the dwelling. Indeed, the evidence indicated that the owner went out of his way to be helpful to the police. Under these circumstances, the police entry into the apartment first to question and conduct a show-up identification of the Defendant and then to arrest him did not violate the Payton rule.
Legality of the Show–Up Identification
A prompt, on-the-scene show-up identification of a suspect to a crime victim will often be held to be permissible because such prompt identifications allow the police to make a quick determination of whether a suspect should be arrested. People v. Duuvon, 77 N.Y.2d 541 (1991). When such a show-up identification procedure is challenged, the People bear the initial burden of showing that the identification was conducted in close spatial and temporal proximity to the crime and must also provide evidence of the circumstances under which the procedure was conducted. The defendant, however, bears the ultimate burden of proving that an identification was unduly suggestive. A procedure which is conducted in an impermissibly suggestive manner must be invalidated even if that identification is justified by the requisite exigencies outlined in Duuvon. People v. Ortiz, 90 N.Y.2d 533 (1997).
Here, in the Court's view, the show-up identification of the Defendant was not unduly suggestive. It was conducted within close temporal and spatial proximity to the crime. The exigency for making a quick identification in this case, moreover, was manifest. The Defendant was the suspect in a gun-point robbery. The circumstances of the show-up itself, while not ideal, were also not, in the Court's view unlawful. The Defendant was in the company of police officers when he was identified, but he was not handcuffed or otherwise visibly detained. He was not at a police precinct or inside a patrol car. Given the crime he was suspected of, moreover, it would have been dangerous to not have multiple officers present with the Defendant when the identification was made.
Officer Negron told the victim that the Defendant was a person who might match the description he had provided. The identification would have been less suggestive had the police simply asked the victim whether he recognized Mr. Vizcaino. However, the police indicated only that the Defendant might match the physical characteristics the victim had outlined. They also did not say that they had any evidence other than the similarity of that physical description which tied the Defendant to the crime. Moreover, even had the police said nothing to the victim about why he was being asked to look at the Defendant, “[i]nherent in any showup is the likelihood that an identifying witness will realize that the police are displaying a person they suspect of committing the crime ...” People v. Gatling, 38 AD3d 239 (1st Dept 2007), lv denied,9 NY3d 865. The motion to suppress the show-up identification and any subsequent in-court identification of the Defendant is therefore denied.
Legality of the Lineup Identifications
“[C]orporeal lineups, properly conducted, generally provide a reliable pretrial identification procedure and are properly admitted unless it is shown that some undue suggestiveness attached to the procedure”. People v. Chipp, 75 N.Y.2d 327, 335 (1990). While the People have burden of producing evidence demonstrating that a pre-trial identification procedure was reasonable, the Defendant bears the ultimate burden of proving a procedure was unduly suggestive. A lineup should be considered unduly suggestive when it creates a substantial likelihood that the Defendant was singled out for identification. People v. Mendez, 208 A.D.2d 358, (1st Dept 1994), app denied,86 N.Y.2d 844 (1995).
The Court finds that the composition of the lineup itself was not unduly suggestive. All six lineup participants were men with similar skin tone. Five of the six participants (including the Defendant) clearly appeared to be of a similar age; filler # 2 appeared to be only slightly older. Since the perpetrators of the robberies had their heads covered, differences in the hair styles of the lineup participants were not material. All of the participants wore the same blue shirts. The heights of the participants with the exception of filler # 3 appeared to be practically identical while filler # 3 appeared to be only slightly larger than the remaining participants. The participants legs were all covered with a yellow sheet. A Defendant appearing in a lineup need not be surrounded by participants who are nearly identical. People v. Ahmed, 173 A.D.2d 546 (2d Dept 1991), app denied,78 N.Y.2d 1073. Mr. Vizcaino did not stand out from the other participants in the lineup in any relevant manner and was not singled out for identification.
The fact that Detective Churla told the victims in his phone call with them prior to viewing the lineup that the police had a suspect in custody increased the suggestiveness of the procedure. A victim told that the police have a suspect in custody and therefore are led to assume the suspect will be present in a lineup may feel that he is expected to identify someone, even if he is unsure that the perpetrator is present in an array. See New York Identification Law, Miriam Hibel, LexisNexus, 2010 Edition, § 4.09[7]. The better procedure would have been for the police to tell the victims that the perpetrator may or may not have been in the lineup. Courts have held, however, that identical remarks made to victims with respect to otherwise valid lineups do not make such lineups unduly suggestive. People v. Santos, 250 A.D.2d 413 (1st Dept 1998), lv denied,92 N.Y.2d 905,cert denied, Santos v. New York, 525 U.S. 1076 (1999).
The lineup in this case was also deficient, in the Court's view, by not containing some of the procedures which are increasingly being viewed as necessary in order to avoid undue suggestiveness. Most significantly, lineups should be conducted in a “double-blind” manner in which the police officer conducting the lineup is unaware who the suspect in the lineup is and so cannot, even unintentionally, skew the result.
However, New York courts have repeatedly held that the failure to use such “double-blind” procedures does not warrant suppression. See, e.g., People v. Torres, 12 AD3d 539 (2d Dept 2004), lv denied,4 NY3d 768 (2005).
In its landmark decision in State v. Henderson, 208 NJ 208 (2011) the New Jersey Supreme Court surveyed extensive scientific evidence about the factors which contribute to wrongful identifications and outlined a number of best practices which should be used by law enforcement agencies when conducting identifications. Identification procedures in New York State are routinely conducted without using many of these important protocols.
The procedures used in arranging and conducting the lineup, however, were also designed to avoid undue suggestiveness in many important respects. The victims were not permitted to talk to each other prior to the identifications and the identifications were conducted separately. No suggestive remarks were made to the victims immediately prior to the identifications. The victims did not see the Defendant or the fillers prior to the lineups. There was no evidence that the police told the victims after the lineups that they had identified the suspect, which could have influenced the validity of any subsequent in-court identification. Defendant's motion to suppress the results of the lineup identifications and any subsequent in-court identifications of the Defendant are therefore denied.
Seizure of Property
The currency allegedly recovered from the bathroom the Defendant was in immediately prior to his arrest was validly seized because the apartment's owner gave the police consent to search the bathroom. See, e.g., People v. Qazi, 220 A.D.2d 464 (2d Dept 1995), app denied,87 N.Y.2d 976 (1996). The Defendant was in police custody and not in a position to object to that consent when it was given There was no evidence, however, that he ever voiced any objection to the search or that his removal from the apartment was effectuated so that he would not be able to protest the owner's consent. Under these circumstances, the police were entitled to rely solely on the consent given by the apartment's owner. See Georgia v. Randolph, 547 U.S. 103 (2006).
The property recovered from the bedroom where the Defendant stayed was validly seized and later examined pursuant to multiple search warrants. Since the information which led the Court to issue those warrants was all obtained lawfully, there is no basis to suppress any of the property recovered pursuant to those warrants as tainted fruit of the poisonous tree. Wong Sun v. U.S., 371 U.S. 471 (1963). The Defendant did not have a reasonable expectation of privacy with respect to the cell phone recovered from the scaffold of the building, a phone the evidence indicated the Defendant may have thrown onto that scaffold. Tenants in apartment buildings generally have no reasonable expectation of privacy in common areas of a building like a stairway or lobby and may therefore not challenge the validity of a search conducted in those areas. People v. Dennis, 263 A.D.2d 618 (3d Dept 1999), lv denied,94 N.Y.2d 822;People v. Bartley, 219 A.D.2d 566 (1995), app denied,87 N.Y.2d 898. A tenant has even less of an expectation of privacy for an item placed on a building scaffold, a location in which tenants would normally never even be present. The cell phone taken from the scaffold, therefore, was properly seized.
For all of the foregoing reasons, Defendant's suppression motion is denied in its entirety.