Opinion
March 15, 1990
Appeal from the Supreme Court, New York County, Brenda S. Soloff, J., Rose L. Rubin, J.
Defendant contends that his motion to suppress certain physical evidence should not have been denied without a hearing. However, as defendant's motion papers did not set forth facts demonstrating that the disputed evidence was obtained under circumstances requiring its suppression, a hearing was not required (CPL 710.60 [b]; People v Reynolds, 71 N.Y.2d 552, 558). Defendant failed to establish standing to contest the seizure by demonstrating a legitimate expectation of privacy over the area searched or the item seized (People v Rodriguez, 69 N.Y.2d 159, 163). Defendant may not assert standing based on the presumption contained in Penal Law § 220.25 since he was not charged with possession under the statutory presumption. Rather, the evidence sought to be suppressed was seized from a vehicle which defendant never entered. A defendant charged with possessory crimes based on a theory other than the statutory presumption must demonstrate a legitimate expectation of privacy to challenge the search (People v Wesley, 73 N.Y.2d 351, 358-359).
Concur — Milonas, J.P., Rosenberger, Ellerin and Smith, JJ.