Opinion
February 16, 2000
Appeal from Judgment of Steuben County Court, Furfure, J. — Criminal Possession Controlled Substance, 5th Degree.
PRESENT: GREEN, A. P. J., HURLBUTT, SCUDDER AND LAWTON, JJ.
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 A.D.2d 540, 541, lv denied 82 N.Y.2d 715, citing People v. Wesley, 73 N.Y.2d 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 N.Y.2d 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 A.D.2d 883, lv denied 86 N.Y.2d 801; People v. Andrews, 216 A.D.2d 571, lv denied 86 N.Y.2d 840).