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PEOPLE STATE NEW YORK v. LLOYD ROSENTHAL (05/12/69)

CITY COURT OF NEW YORK, POUGHKEEPSIE 1969.NY.41498 <http://www.versuslaw.com>; 299 N.Y.S.2d 960; 59 Misc. 2d 565 May 12, 1969 THE PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF,v.LLOYD ROSENTHAL, AS EXECUTOR AND TRUSTEE OF THE ESTATE OF ROSE ROSENTHAL, DECEASED, DEFENDANT Jack Economou for plaintiff. Peter L. Maroulis for defendant. Joseph H. Gellert, J. Author: Gellert


Joseph H. Gellert, J.

Author: Gellert

 Defendant, as executor and trustee of the estate of Rose Rosenthal, deceased, is the owner of an apartment building in the City of Poughkeepsie. The information herein charges that the structure is a "danger and hazard to the health, safety, morals and welfare of the occupants or the public," an alleged violation of the Minimum Housing Standards Ordinance, Code of Ordinances, City of Poughkeepsie.

Three specific instances of disrepair are before the court: first, an allegedly deteriorated roof of a garage, an accessory structure; second, allegedly deteriorated porches, not in good repair and with rotting due to leaking roofs; third, walls of the building are alleged to be structurally unsound "in that" plaster in a second floor bathroom and in the front and rear halls is cracked.

The information declares the source of the People's knowledge of defects as a series of inspection over a period in excess of eight months. Defendant herein moves to suppress the evidence thus discovered, alleging that the inspections were made in violation of his right against unreasonable searches as provided in the Fourth Amendment of the United States Constitution and section 12 of article I of the New York State Constitution.

After considerable research by the court and analysis of the exhaustive briefs presented by both counsel, the court concludes that the various items sought to be suppressed present distinct and separate matters of law. They will be discussed below.

The initial issue presented by the prosecution is the matter of defendant's standing to move for suppression of the evidence. It is undisputed that defendant is not a resident of the premises in question. The People assert that the traditional rule is such that an absentee landlord lacks standing to complain of searches in structures owned by him and leased to others. In support thereof, the cases of Thomas v. United States (154 F. 2d 365); Curry v. United States (192 F. 2d 571) and Schnitzer v. United States (77 F. 2d 233) are cited.

The outstanding hour in the history of "standing" to move for suppression was the Prohibition era. The great body of law that supports the view of the People herein stems from searches of "stills" after which owners of property in which the "still" operated were prosecuted together with the entrepreneurs. There arose a general rule therefrom which is stated as follows: "An owner of the premises searched who is not in possession thereof, such as a lessor or sublessor, has no standing to raise objections as to the legality of the search and seizure." (Ann. 78 ALR 2d 246, 255-256, citing at p. 256, Hardwig v. United States, 23 F. 2d 922 and Schnitzer v. United States, supra.)

In light of this "rule", the most difficult area under consideration is that of the standing, or lack thereof, of defendant with regard to the search of the bathroom ceiling in one of the leased apartments. A reading of the above-stated "rule", without more, would easily dispose of the motion in this regard. However, the stringencies in the concept of "standing" commenced to erode in 1960 with the United States Supreme Court decision in Jones v. United States (362 U.S. 257). It was there recognized that where a defendant was accused of possessing narcotics or other contraband, he was faced with an unconscionable dilemma. He must deny possession, which is consistent with a plea of not guilty, and, concurrently, assert a possessory interest in the contraband so as to have standing to move for suppression. In Jones, the court relieved defendants in contraband cases of this difficult choice. The ruling in Jones, then, relaxes the traditional requirements. In 1962 in the then Kings County Court, New York, the court in People v. Smith (35 Misc. 2d 533) expanded the Jones decision.

Taking cognizance of the broad verbiage in section 813-c of the Code of Criminal Procedure, the Smith court attempted to accomplish two things. First, it declared that in New York, the law would henceforth be that categorization of the evidence as "contraband" or "fruits" of a search, will no longer be determinative of standing. Second, it purports to give standing to anyone against whom seized evidence may be used. Presumably, this includes absentee landlords.

The Smith decision has been subsequently analyzed, dissected, ignored in part and followed in part. (See, for example, People v. Cefaro, 45 Misc. 2d 990, affd. without opn. 28 A.D.2d 694, affd. 21 N.Y.2d 252; People v. Manzi, 38 Misc. 2d 114, 118; People v. Kramer, 38 Misc. 2d 889, 893.)

From the subsequent amplification of the Smith doctrine, the conclusion is to be derived that the statutory wording in New York is broad on the issue of standing, but is still subject to analysis from the standpoint of the status of the movant. In other words, it remains the law that not every defendant possesses standing.

The court's research in the case at bar discloses no precedent encompassing the facts herein. It is a certainty, however, that the relatively new (1962) New York statute is sufficiently broad to relegate into obsolescence the concept that an otherwise illegal search may not be attacked because the premises searched is not defendant's home or "curtilage." (That this may also be the current Federal rule is discussed below in connection with Katz v. United States, 389 U.S. 347.)

Having thus decided, the effect on defendant's standing of the status of the property as a leasehold, must be considered.

In each and every case found by the court which denies a landlord standing to object to a search of leased premises, the evidence is a chattel which does or could belong to a tenant. It is the privacy of the tenant that is thus invaded. Therefore, the landlord has traditionally been precluded from moving for suppression. We are faced in the instant case with either denying defendant standing merely because the alleged structural defect exists within a leased area or acknowledging his status to so move as the court would be required to do if defendant himself occupied the premises. In other words, the ...


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