PEOPLE v. JOSEPH (2009)

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.

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 N.Y.2d 514, 516 N.Y.S.2d 168, 508 N.E.2d 903 (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 A.D.3d 297, 863 N.Y.S.2d 407 [2008], lv. denied 11 N.Y.3d 854, 872 N.Y.S.2d 76, 900 N.E.2d 559 [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 N.Y.2d 351, 540 N.Y.S.2d 757, 538 N.E.2d 76 [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.