People v. Dawson

269 A.D.2d 817, 703 N.Y.S.2d 778, 2000 N.Y. App. Div. LEXIS 1727

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 16, 2000
• Status: Published

Opinion

—Judgment unanimously affirmed. Memorandum: County Court properly determined that defendant lacks standing to challenge the strip search of codefendant and the seizure of cocaine from codefendant’s underwear. “A defendant seeking to challenge a search and seizure cannot rest upon the fact that the People have charged him with constructive possession of contraband, but must demonstrate that the search violated a personal legitimate expectation of privacy” (People v Cedeno, 193 AD2d 540, 541, lv denied 82 NY2d 715, citing People v Wesley, 73 NY2d 351, 357-359). Defendant made no such demonstration with respect to the search of codefendant (see, People v Cedeno, supra, at 541). Further, defendant is entitled to automatic standing only if the possessory charge “is rooted solely in a statutory presumption attributing possession to” him (People v Tejada, 81 NY2d 861, 863). The alleged possession of the cocaine by defendant was not premised upon any statutory presumption, and he is therefore not entitled to automatic standing (see, People v Reynolds, 216 AD2d 883, lv denied 86 NY2d 801; People v Andrews, 216 AD2d 571, lv denied 86 NY2d 840). (Appeal from Judgment of Steuben County Court, Furfure, J. — Criminal Possession Controlled Substance, 5th Degree.) Present — Green, A. P. J., Hurlbutt, Scudder and Law-ton, JJ.