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People v. Joseph

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


June 2, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
DOMINIQUE JOSEPH, DEFENDANT-APPELLANT.

Judgment, Supreme Court, New York County (Charles J. Tejada, J. at suppression hearing; Michael J. Obus, J. at plea and sentence), rendered January 17, 2008, convicting defendant of criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to a term of 3 years, unanimously affirmed.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Saxe, Sweeny, Acosta, Abdus-Salaam, JJ.

2684/06

The court properly denied defendant's suppression motion. The court properly determined that defendant lacked standing to challenge the search of the livery cab in which he was a passenger. Defendant was not entitled to rely on the automatic standing exception announced in People v Millan, 69 NY2d 514 (1987) since the People did not rely solely on the statutory presumption contained in PL 265.15(3) to establish his guilt (see People v Cheatham, 54 AD3d 297 [2008], lv denied 11 NY3d 854 [2008]), but also relied on evidence that defendant pushed the bag containing the weapon off the seat onto the floor of the cab. The People therefore established defendant's actual exercise of dominion and control over the gun and did not solely rely on the statutory presumption. Since defendant failed to establish that he had a legitimate expectation of privacy in the cab (see People v Wesley, 73 NY2d 351 [1989]), he lacked standing to challenge the search. In any event, the record also supports the court's alternative finding that the search and seizure was lawful.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090602

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