People v. Wheatman

• Decision Date: 26 March 1970
• Citation: 34 A.D.2d 3,308 N.Y.S.2d 919
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE of the State of New York, Respondent, v. Nathan WHEATMAN, Defendant-Appellant.

Page 919

308 N.Y.S.2d 919

34 A.D.2d 3

The PEOPLE of the State of New York, Respondent, v. Nathan WHEATMAN, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

March 26, 1970.

Irving Anolik, New York City, for defendant-appellant.

Lewis R. Friedman, New York City, of counsel (Michael R. Juviler, New York City, with him on the brief; Frank S. Hogan, Dist. Atty.) for respondent.

Before EAGER, J.P., and CAPOZZOLI, TILZER, NUNEZ and McNALLY, JJ.

McNALLY, Justice.

On the application of the District Attorney during the February 1970 term, we granted reargument of the appeal with reference to defendant Wheatman, 33 A.D.2d 1107. The judgments of conviction herein were previously reversed on the law, and a new trial directed, Justices McNally and Tilzer dissenting, (33 A.D.2d 67, 304 N.Y.S.2d 904) and voting to affirm. The reversal was grounded on the validity of the search warrant and the suppression of the evidence discovered.

In support of reargument with reference to Wheatman, the District Attorney argues that the search warrant was not directed against Wheatman and that his property was not seized and he, therefore, was neither the victim nor the person against whom the search was directed. It is argued Wheatman has no standing since his constitutional rights were not infringed, and he cannot be heard to complain of the violation of the constitutional rights of another. Whether the person claiming standing has been a victim of constitutional infringement depends on the facts in each case and the person's relation to the objects seized or premises searched. People v. Estrada, 28 A.D.2d 681, 280 N.Y.S.2d 825, aff'd, 23 N.Y.2d 719, 296 N.Y.S.2d 364, 244 N.E.2d 57; People v. Morhouse, 21 N.Y.2d 66, 76, 286 N.Y.S.2d 657, 664--665, 233 N.E.2d 705, 710. Only 'a person claiming to be aggrieved by an unlawful search and seizure' has standing to move to suppress. (Section 813--c, Code of Criminal Procedure) See also Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 4 L.Ed.2d 697.

Defendant Wheatman fails to establish he was the victim or the person against whom the search was directed. His claim that the seized evidence was used against him without a showing that it is the product of an illegal search of his person or his premises does not establish the violation of a protected constitutional right. Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176; People v. Cefaro, 21 N.Y.2d 252, 257, 287 N.Y.S.2d 371, 374--375, 234 N.E.2d 423, 425--426, reversed on reargument on other grounds, 23 N.Y.2d 283, 296 N.Y.S.2d 345, 244 N.E.2d 42.

Accordingly, on reargument the order of November 6, 1969 is modified to affirm the conviction of appellant Wheatman.

All concur except EAGER, J.P., and NUNEZ, J., who dissent in a dissenting opinion by NUNEZ, J.

NUNEZ, Justice (dissenting).

The District Attorney's motion to modify the order of reversal as to Wheatman should be denied.

We reversed the conviction of each appellant and directed a new trial upon the ground that the search warrant issued June 15, 1965 was invalid and that the evidence seized thereunder should have been suppressed.

The District Attorney belatedly makes the point that the warrant was not directed against defendant Wheatman; that none of his property was seized and that, therefore, he cannot be heard to complain that a violation of the co-defendants' constitutional protection has prejudiced him; he contends that because Wheatman was neither the victim nor the person against whom the search was directed he lacked standing to challenge the validity of the search warrant.

The question of Wheatman's standing is raised on this reargument motion for the first time. It was not raised at Trial Term or on the appeal in chief. Absent special circumstances, here non-existent, the question cannot be raised now. See People v. Fino, 24 N.Y.2d 1020, 302 N.Y.S.2d 842, 250 N.E.2d 245 (1969).

The trial court erroneously ruled that the unlawfully seized evidence was admissible against all the defendants. No limiting instructions were given. Twenty-five counts were submitted to the jury against thirteen defendants. The jury convicted only Wheatman and six others...