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