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CAPELLAN v. RILEY

October 30, 1991

FELIBERTO CAPELLAN, PETITIONER,
v.
DEAN RILEY, SUPERINTENDENT OF FISHKILL CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Tenney, District Judge.

OPINION

Feliberto Capellan ("Capellan") petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1988). Capellan was convicted, upon a plea of guilty, in the New York State Supreme Court, New York County, of criminal possession of a controlled substance in the second degree, N.Y. Penal Law § 220.18(1) (McKinney 1984) ("Penal Law"), and was sentenced to a term of imprisonment of six years to life (Rothwax, J.). The Appellate Division affirmed the conviction, 159 A.D.2d 324, 552 N YS.2d 601 (1st Dep't 1990), reargument denied, 1990 N.Y. App. Div. LEXIS 6830, and the New York State Court of Appeals denied Capellan's application for leave to appeal. 76 N.Y.2d 853, 560 N.Y.S.2d 993, 561 N.E.2d 893 (1990).

Capellan argues that his constitutional rights to due process and to be free from unreasonable searches and seizures were violated because he was denied an evidentiary hearing on his pretrial motion to suppress physical evidence. For the reasons set forth below, the petition is granted.

BACKGROUND

At 8:15 a.m. on June 12, 1986, police officers executed a search warrant for apartment 24B at 531 West 211th Street in New York, New York. A. 16.*fn1 When the officers arrived, Capellan, who was alone in the apartment and clad only in a towel, answered the door. A. 16. The police searched the apartment and found over six pounds of cocaine, a scale, a strainer, plastic bags, and tin foil. A. 47. Capellan was arrested and indicted with two counts of first-degree criminal possession of a controlled substance, Penal Law § 220.21(1), and one count of second-degree criminal use of drug paraphernalia, Penal Law § 220.50. A. 47-48.

Thereafter, Capellan moved to suppress the physical evidence which was recovered on the ground that the search was unlawful. The court summarily denied the motion in a memorandum decision issued October 8, 1986, finding that because Capellan had "failed to make any allegation that he had a protected privacy interest in the premises searched for the property seized," he had no standing to assert his Fourth Amendment claims.*fn2 A. 22 (Goodman, J.). However, the court permitted Capellan to submit additional allegations to establish his Fourth Amendment standing.

In response, Capellan submitted the following statement:

  a)  I was arrested on June 12, 1986 at 531 West
      211th Street, New York [sic] N Y
  b)  Althrough [sic] I was in the apartment at the
      time of the arrest, I was neither the
      leaseholder nor a permanent resident of this
      apartment.
  c)  I had moved into the apartment with the
      intent to stay only a couple of days.
  d)  I had no prior knowledge of any activity
      taking place within this apartment nor did I
      have knowledge of any illegal substances
      contained within the apartment.

A. 24. On October 22, 1986, the court ruled from the bench that: "Its [sic] clear from [Capellan's] affidavit he has no standing to contest [the search warrant]. He has no reasonable expectation of privacy to the premises since he has indicated in his affidavit [that he is] neither [a] leaseholder [nor] a permanent resident of the apartment." A. 26-27.

On December 1, 1986, Capellan pleaded guilty to one count of criminal possession of a controlled substance in the second degree, Penal Law § 220.18(1), in full satisfaction of the indictment (Rothwax, J.). On January 7, 1987, Capellan was sentenced to a term of imprisonment of six years to life. A. 43. Capellan, however, reserved his right to appeal the denial of his suppression motion. A. 33-34, 43.

On direct appeal to the Appellate Division, Capellan argued that in ruling from the bench on October 22, 1986, the court had applied an incorrect standing test in summarily denying his motion to suppress. A. 57. On March 15, 1990, the Appellate Division affirmed the trial court, finding that Capellan did not have Fourth Amendment standing because he had failed to establish the requisite reasonable expectation of privacy under the "totality of the circumstances" test of People v. Wesley, 73 N.Y.2d 351, 540 N.Y.S.2d 757, 538 N.E.2d 76 (1989), and People v. Rodriguez, 69 N.Y.2d ...


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