In re Tyheem W.

Appellate Division of the Supreme Court of New York

In re Tyheem W.

91 A.D.3d 964, 937 N.Y.2d 310

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 31, 2012

StatusPublished

This text of 91 A.D.3d 964 (In re Tyheem W.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re Tyheem W., 91 A.D.3d 964, 937 N.Y.2d 310 (N.Y. Ct. App. 2012).

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Opinion

As a mere passenger, the appellant lacked standing to challenge the search of a lawfully stopped livery cab with respect to which he demonstrated no legitimate expectation of privacy (see People v Robinson, 38 AD3d 572, 573 [2007]; People v Ballard, 16 AD3d 697, 698 [2005]). Moreover, the appellant did not have automatic standing, since the presentment agency was not solely relying on the statutory presumption of Penal Law § 265.15 (3) (a) (see People v Millan, 69 NY2d 514, 520 [1987]; People v Robinson, 38 AD3d at 572; People v Fredericks, 234 AD2d 472, 473 [1996]; People v Carter, 199 AD2d 817, 819 [1993], affd 86 NY2d 721 [1995]).

[965]*965Viewing the evidence in the light most favorable to the presentment agency (see Matter of David H., 69 NY2d 792 [1987]; People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish beyond a reasonable doubt that the appellant committed an act which, if committed by an adult, would have constituted the crime of criminal possession of a weapon in the second degree, and that he committed two counts of unlawful possession of weapons by persons under 16 (see Penal Law § 265.00 [15]; § 265.03 [3]; § 265.05; Matter of Macye Mc., 82 AD3d 892 [2011]; Matter of Darnell C., 66 AD3d 771 [2009]). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (cf. CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accord deference to the factfinder’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see Matter of Darnell C., 66 AD3d 771 [2009]; cf. People v Mateo, 2 NY3d 383 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied that the Family Court’s fact-finding determination was not against the weight of the evidence (cf. People v Romero, 7 NY3d 633 [2006]). Rivera, J.R, Eng, Lott and Sgroi, JJ., concur.

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As a mere passenger, the appellant lacked standing to challenge the search of a lawfully stopped livery cab with respect to which he demonstrated no legitimate expectation of privacy (see People v Robinson, 38 AD3d 572, 573 [2007]; People v Ballard, 16 AD3d 697, 698 [2005]). Moreover, the appellant did not have automatic standing, since the presentment agency was not solely relying on the statutory presumption of Penal Law § 265.15 (3) (a) (see People v Millan, 69 NY2d 514, 520 [1987]; People v Robinson, 38 AD3d at 572; People v Fredericks, 234 AD2d 472, 473 [1996]; People v Carter, 199 AD2d 817, 819 [1993], affd 86 NY2d 721 [1995]).

[965]*965Viewing the evidence in the light most favorable to the presentment agency (see Matter of David H., 69 NY2d 792 [1987]; People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish beyond a reasonable doubt that the appellant committed an act which, if committed by an adult, would have constituted the crime of criminal possession of a weapon in the second degree, and that he committed two counts of unlawful possession of weapons by persons under 16 (see Penal Law § 265.00 [15]; § 265.03 [3]; § 265.05; Matter of Macye Mc., 82 AD3d 892 [2011]; Matter of Darnell C., 66 AD3d 771 [2009]). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (cf. CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accord deference to the factfinder’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see Matter of Darnell C., 66 AD3d 771 [2009]; cf. People v Mateo, 2 NY3d 383 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied that the Family Court’s fact-finding determination was not against the weight of the evidence (cf. People v Romero, 7 NY3d 633 [2006]). Rivera, J.R, Eng, Lott and Sgroi, JJ., concur.

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91 A.D.3d 964, 937 N.Y.2d 310, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-tyheem-w-nyappdiv-2012.

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