After a bench trial, I hereby pronounce the Appellate Division, First Department, not guilty of the charge (Marc Fernich, “Hybrid Fourth and Sixth Amendment Claims in Habeas Practice,” NYLJ, July 9) that it committed a “flagrant mistake of law” in People v. Capellan1 by “contravening clear Supreme Court precedent that gave the defendant standing to contest an apartment search as an overnight guest.” True, I am an associate justice of that very court, but the cynical cannot question my impartiality on that ground. After all, I was not a member of the court 20 years ago when People v. Capellan was decided.
The factual portion of the indictment charges that Mr. Capellan argued before the First Department that he should have been able to challenge the legality of a search of an apartment, pursuant to a search warrant, that resulted in the recovery of more than six pounds of cocaine from the refrigerator and closets.
