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