| People v Joseph |
| 2009 NY Slip Op 04287 [63 AD3d 420] |
| June 2, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Dominique Joseph, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Elizabeth Hyon of counsel), forrespondent.
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 ofcriminal possession of a weapon in the third degree, and sentencing him, as a second felonyoffender, to a term of three years, unanimously affirmed.
The court properly denied defendant's suppression motion. The court properly determinedthat defendant lacked standing to challenge the search of the livery cab in which he was apassenger. Defendant was not entitled to rely on the automatic standing exception announced inPeople v Millan (69 NY2d 514 [1987]) since the People did not rely solely on thestatutory presumption contained in Penal Law § 265.15 (3) to establish his guilt (see People v Cheatham, 54 AD3d297 [2008], lv denied 11 NY3d 854 [2008]), but also relied on evidence thatdefendant pushed the bag containing the weapon off the seat onto the floor of the cab. ThePeople therefore established defendant's actual exercise of dominion and control over the gunand did not solely rely on the statutory presumption. Since defendant failed to establish that hehad 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 thecourt's alternative finding that the search and seizure was lawful. Concur—Tom, J.P.,Saxe, Sweeny, Acosta and Abdus-Salaam, JJ.