People v. Kunz

Appeal from an order of the Supreme Court, Erie County (Russell E Buscaglia, A.J.), entered March 21, 2007. The order, insofar as appealed from, granted that part of defendant’s omnibus motion seeking to suppress physical evidence.

It is hereby ordered that the order so appealed from is unanimously affirmed and the indictment is dismissed.

Memorandum: On this appeal by the People, we conclude that Supreme Court properly suppressed evidence seized by the police during a warrantless search of defendant’s residence. As the court properly determined, the People failed to establish by the requisite preponderance of the evidence that the independent contractor hired by a bank to secure the property in anticipation of a foreclosure sale had actual or apparent authority to consent to the search of defendant’s residence (see People v Gonzalez, 88 NY2d 289, 295 [1996]). Present—Scudder, P.J., Martoche, Smith, Green and Gorski, JJ. [See 16 Misc 3d 312 (2007).]