        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1293
KA 13-01485
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANGEL GUZMAN, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


JAMES S. KERNAN, PUBLIC DEFENDER, LYONS, THE ABBATOY LAW FIRM, PLLC,
ROCHESTER (DAVID M. ABBATOY, JR., OF COUNSEL), FOR
DEFENDANT-APPELLANT.

RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (BRUCE A. ROSEKRANS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Wayne County Court (Daniel G.
Barrett, J.), rendered January 26, 2012. The judgment convicted
defendant, upon his plea of guilty, of burglary in the second degree
and petit larceny (three counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon a plea of guilty of, inter alia, burglary in the
second degree (Penal Law § 140.25 [2]). In appeal No. 2, defendant
appeals from a judgment convicting him upon a plea of guilty of four
counts of burglary in the second degree (§ 140.25 [2]). In both
appeals, defendant contends that he has standing to challenge the
placement of GPS devices on two vehicles owned by and registered to
his girlfriend, and that the warrants and extensions authorizing the
placement of the devices were issued without probable cause.

     County Court properly determined that defendant lacked standing
because he failed to establish the existence of a legitimate
expectation of privacy in the subject vehicles (see People v Cooper,
128 AD3d 1431, 1433, lv denied 26 NY3d 966; People v Lacey, 66 AD3d
704, 705, lv denied 14 NY3d 772). Here, as in Lacey, the evidence at
the suppression hearing established that the vehicles were owned by
and registered to defendant’s girlfriend, and there was no “evidence
that . . . defendant took precautions to maintain privacy in the
subject vehicle[s] or that he had the right to exclude others
therefrom” (Lacey, 66 AD3d at 706; see People v Di Lucchio, 115 AD2d
555, 556-557, lv denied 67 NY2d 942). Moreover, although an
investigator testified that he saw defendant driving one of the
                                 -2-                          1293
                                                         KA 13-01485

subject vehicles on two occasions, that evidence “is insufficient to
meet defendant’s burden of establishing a reasonable expectation of
privacy in the vehicle” (People v Rivera, 83 AD3d 1370, 1372, lv
denied 17 NY3d 904). Based on our determination that defendant lacked
standing to challenge the placement of the GPS devices on the
vehicles, we do not address defendant’s remaining contentions
concerning the placement of the devices on the vehicles.

     We reject defendant’s further contention in appeal No. 2 that the
court erred in refusing to suppress statements that he made to the
police because they were obtained in violation of his right to
counsel. First, defendant contends that his right to counsel was
violated when the police unlawfully delayed his arraignment for the
purpose of obtaining a statement in the absence of counsel. That
contention lacks merit. Defendant’s right to counsel had not attached
inasmuch as he had not requested an attorney and formal proceedings
had not begun with respect to the charges underlying appeal No. 2 (see
People v Ramos, 99 NY2d 27, 34), and it is well settled that “a delay
in arraignment for the purpose of further police questioning does not
establish a deprivation of the State constitutional right to counsel”
(id. at 37). Second, defendant contends that his right to counsel had
attached with respect to the charges underlying appeal No. 2 because
the charges underlying appeal Nos. 1 and 2 were all related, and his
right to counsel had indisputably attached with respect to the
burglary at issue in appeal No. 1. Although defendant is correct that
his right to counsel had attached with respect to the charges
underlying appeal No. 1 inasmuch as the indictment on those charges
was filed before defendant was questioned by law enforcement officials
(see generally People v Kazmarick, 52 NY2d 322, 324; People v Brinson,
28 AD3d 1189, 1189-1190, lv denied 7 NY3d 810), we conclude that the
law enforcement officials were not prohibited from questioning
defendant in the absence of counsel with respect to the charges in
appeal No. 2. Defendant was not represented by counsel with respect
to the charges underlying appeal No. 1, and the charges underlying
each appeal are unrelated because they arose from separate burglaries
occurring at different dwellings (see People v Hooks, 71 AD3d 1184,
1185; People v Brown, 216 AD2d 670, 672, lv denied 86 NY2d 791; People
v Ferringer, 120 AD2d 101, 107).




Entered:   February 3, 2017                    Frances E. Cafarell
                                               Clerk of the Court
