People v. Andrews

• Decision Date: 26 June 1995
• Citation: 216 A.D.2d 571,629 N.Y.S.2d 442
• Parties: The PEOPLE, etc., Respondent, v. Joseph ANDREWS, a/k/a David Andrews, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 442

629 N.Y.S.2d 442

216 A.D.2d 571

The PEOPLE, etc., Respondent, v. Joseph ANDREWS, a/k/a David Andrews, Appellant.

Supreme Court, Appellate Division Second Department.

June 26, 1995.

Daniel L. Greenberg, New York City (Jonathan Hager, of counsel), for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Roseann B. MacKechnie and Ann Bordley, of counsel), for respondent.

Before THOMPSON, J.P., and PIZZUTO, SANTUCCI and FLORIO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Barasch, J.), rendered April 15, 1993, convicting him of criminal possession of a controlled substance in the third degree and criminal possession of a weapon in the third degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

The defendant argues that certain items were unlawfully seized because the police unlawfully entered into an automobile shop. Contrary to the defendant's argument, the People may argue for the first time on appeal that he lacked standing to challenge the police entry since it was the defendant's burden, in the first instance, to establish that he had standing (see, People v. Jackson, 207 A.D.2d 805, 616 N.Y.S.2d 530; People v. Rivera, 206 A.D.2d 832, 615 N.Y.S.2d 196; People v. Banks, 202 A.D.2d 902, 609 N.Y.S.2d 420, revd on other grounds 85 N.Y.2d 558, 626 N.Y.S.2d 986, 650 N.E.2d 833; People v. Jones, 182 A.D.2d 1066, 582 N.Y.S.2d 868). Furthermore, the hearing record establishes that the defendant did not satisfy his burden of demonstrating that he had standing to contest the police entry and the subsequent search. A defendant has standing to challenge a search which results in the seizure of contraband only if he demonstrates "a personal legitimate expectation of privacy in the searched premises" (People v. Wesley, 73 N.Y.2d 351, 357, 540 N.Y.S.2d 757, 538 N.E.2d 76; see also, CPL 710.60; People v. Tejada, 81 N.Y.2d 861, 863, 597 N.Y.S.2d 626, 613 N.E.2d 532). The only evidence adduced at the suppression hearing with respect to the defendant's relationship to the automobile body shop in question was his statement to police in which he claimed that he was a customer dropping off his car for repairs.

Moreover, the defendant did not have automatic standing to challenge the search. A criminal defendant is entitled to automatic standing "only where the criminal possessory charge is rooted solely in a statutory presumption attributing possession to a defendant" (People v. Tejada, supra, at 863, 597 N.Y.S.2d 626, 613 N.E.2d 532; People v. Jackson, 207 A.D.2d 805, 616 N.Y.S.2d 530). The defendant's possession of weapons and drug paraphernalia was not premised upon any statutory presumption (see, People v. Stewart, 153 A.D.2d 597, 598, 544 N.Y.S.2d 386). Moreover, as established by the court's charge at the trial, the defendant's possession of narcotics was based upon both constructive possession and the statutory presumption pursuant to Penal Law § 220.25(2). The evidence adduced at the hearing that the...