Defendant's Right to Challenge a Search Pursuant to His 'Dwelling' As Defined by Article 35 of the Penal Law
In People v. McCurdy, 86 A.D.2d 493, 450 N.Y.S.2d 507 (2d Dept. 1982), the Court found that a hallway located in a locked brownstone was considered a part of a person's "dwelling" for the purposes of Penal Law 35.15(2).
The holding in McCurdy is clearly not applicable to the facts in this case because it dealt with the definition of a "dwelling" with respect to the defense of justification and the absence of a duty to retreat from imminent deadly physical force.
Thus, it is certainly not controlling on the issue of whether a defendant has standing to challenge a search pursuant to the Fourth Amendment.
For the purposes of Article 35 of the Penal Law, a "dwelling" is defined as a "building which is usually occupied by a person lodging therein at night." See P.L. 35.20(4); 140.00(3).
This definition is broad in nature, appearing to encompass an entire building and consequently, all common areas within.
By comparison, Appellate courts have applied a much stricter definition of one's "home" for Fourth Amendment purposes, denying defendants standing to challenge the search of common areas of their building where access is substantially unrestricted.
People v. Powell, 54 N.Y.2d 524, 446 N.Y.S.2d 232, 430 N.E.2d 1285 (1981);
People v. Bilsky. 261 A.D.2d 174, 691 N.Y.S.2d 388 (1st Dept. 1999).