In the years after the Court of Appeals decision in Stith three of the four Appellate Departments have issued rulings counter to the Stith holding, concluding that because it is the defendant's initial burden to establish standing, the People may raise defendant's lack of standing for the first time on appeal (see People v McCall, 51 AD3d 822, 822 [2d Dept 2008] lv denied 11 NY3d 856 ; People v Hooper, 245 AD2d 1020, 1021 [4th Dept 1997]; People v Banks, 202 AD2d 902, 904 [3d Dept 1994] revd on other grounds 85 NY2d 558 . Only the Appellate Division, First Department (People v Graham, 211 AD2d 55, 57-58 [1st Dept 1995] lv denied 86 NY2d 795 ) correctly applied the Court's holding that was adverse to the prosecution.
After years of its decision in Stith being ignored, the Court in People v Hunter (2011 NY Slip Op 04542 [6/2/11]) finally reminded courts that they are bound to follow its decision in Stith. And the Court explained why preservation requirements apply to the prosecutor:
Given that the primary reason for "demanding notice through objection or motion in a trial court, as with any specific objection, is to bring the claim to the trial court's attention" (People v Gray, 86 NY2d 10, 20-21 ), the People are required to alert the suppression court if they believe that the defendant has failed to meet his burden to establish standing (see People v Carter, 86 NY2d 721, 722-723  [setting forth the premise that a defendant "must allege standing to challenge the search and, if the allegation is disputed, must establish standing" (emphasis supplied)]). The preservation requirement serves the added purpose of alerting the adverse party of the need to develop a record for appeal. Here, because the People failed to preserve the issue, the Appellate Division erred in entertaining it.