room presumption in New York

1991And, since defendant’s suppression motion was prepared before the decision in People v Millan ( 69 NY2d 514 ), on which our decision in Mato was based, it would not be in the interests of justice to deny defendant the hearing he seeks on the ground that automatic standing was not urged in his suppression motion and is therefore not preserved for appel late review (cf., People v Knight, 138 AD2d 294 , appeal dismissed 73 NY2d 992 ).

1988Second, a defendant may obtain automatic standing if an allegation of possession is founded entirely on a statutory presumption (People v Millan, 69 NY2d 514 ), such as the room presumption (Penal Law § 220.25).

1992Moreover, we disagree with the hearing court’s finding that the automatic standing which resulted from the prosecution’s potential reliance on the room presumption limited defendant to contesting a seizure within the apartment only insofar as it may have been the result of a search conducted without probable cause, but did not allow defendant to also contest it as the fruit of an illegal, warrantless entry into the apartment (see, People v Mato, 160 AD2d 435 , lv denied 76 NY2d 988 ; People v Stewart, 153 AD2d 597 ).

1991While the People continue to urge upon us that the room presumption does not confer "automatic standing” to challenge a search, we adhere to our decision in People v Mato ( 160 AD2d 435 ) that it does (accord, People v Barrows, 155 AD2d 470 [2d Dept]; People v Stewart, 153 AD2d 597 [2d Dept]).

1992Moreover, we disagree with the hearing court’s finding that the automatic standing which resulted from the prosecution’s potential reliance on the room presumption limited defendant to contesting a seizure within the apartment only insofar as it may have been the result of a search conducted without probable cause, but did not allow defendant to also contest it as the fruit of an illegal, warrantless entry into the apartment (see, People v Mato, 160 AD2d 435 , lv denied 76 NY2d 988 ; People v Stewart, 153 AD2d 597 ).

1991While the People continue to urge upon us that the room presumption does not confer "automatic standing” to challenge a search, we adhere to our decision in People v Mato ( 160 AD2d 435 ) that it does (accord, People v Barrows, 155 AD2d 470 [2d Dept]; People v Stewart, 153 AD2d 597 [2d Dept]).

2009The Court of Appeals, however, has held that proof of the defendant’s “mere presence” in an apartment that the defendant did not own, rent or occupy is insufficient to establish his dominion and control over drugs, guns or paraphernalia that were found in the apartment but were not in open view and therefore were not subject to the room presumption (People v Headley, 74 NY2d 858, 859 [1989], affg 143 AD2d 937 [1988] [“Proof that the premises were used for drug dealing was not sufficient to establish that defendant himself was guilty of unlawful drug and weapons possession”]; see People v Pears

2009The Court of Appeals, however, has held that proof of the defendant’s “mere presence” in an apartment that the defendant did not own, rent or occupy is insufficient to establish his dominion and control over drugs, guns or paraphernalia that were found in the apartment but were not in open view and therefore were not subject to the room presumption (People v Headley, 74 NY2d 858, 859 [1989], affg 143 AD2d 937 [1988] [“Proof that the premises were used for drug dealing was not sufficient to establish that defendant himself was guilty of unlawful drug and weapons possession”]; see People v Pears

2009The Court of Appeals, however, has held that proof of the defendant’s “mere presence” in an apartment that the defendant did not own, rent or occupy is insufficient to establish his dominion and control over drugs, guns or paraphernalia that were found in the apartment but were not in open view and therefore were not subject to the room presumption (People v Headley, 74 NY2d 858, 859 [1989], affg 143 AD2d 937 [1988] [“Proof that the premises were used for drug dealing was not sufficient to establish that defendant himself was guilty of unlawful drug and weapons possession”]; see People v Pears

2004In People v Paulino ( 216 AD2d 238 , lv denied 89 NY2d 1039 ), the First Department, citing Tejada , held that the defendant did not have automatic standing to contest the search and seizure of a room because the People relied on not only the room presumption contained in PL § 220.25(2) but also on the theory of constructive possession. [FN6] In People v Carter ( 199 AD2d 817 , aff'd 86 NY2d 721 , rearg denied 86 NY2d 839 ), the Third Department, citing Tejada , held that "automatic standing to challenge a search and seizure on constitutional grounds exists only where the criminal possessory c

2004In People v Paulino ( 216 AD2d 238 , lv denied 89 NY2d 1039 ), the First Department, citing Tejada , held that the defendant did not have automatic standing to contest the search and seizure of a room because the People relied on not only the room presumption contained in PL § 220.25(2) but also on the theory of constructive possession. [FN6] In People v Carter ( 199 AD2d 817 , aff'd 86 NY2d 721 , rearg denied 86 NY2d 839 ), the Third Department, citing Tejada , held that "automatic standing to challenge a search and seizure on constitutional grounds exists only where the criminal possessory c

2004In People v Paulino ( 216 AD2d 238 , lv denied 89 NY2d 1039 ), the First Department, citing Tejada , held that the defendant did not have automatic standing to contest the search and seizure of a room because the People relied on not only the room presumption contained in PL § 220.25(2) but also on the theory of constructive possession. [FN6] In People v Carter ( 199 AD2d 817 , aff'd 86 NY2d 721 , rearg denied 86 NY2d 839 ), the Third Department, citing Tejada , held that "automatic standing to challenge a search and seizure on constitutional grounds exists only where the criminal possessory c

2004In People v Hooks ( 258 AD2d 954 , lv denied 93 NY2d 972 ), a case where the denial of standing to contest the search of an apartment was upheld, an unanimous Fourth Department, quoting Tejada , held that because the possession charges were not rooted solely in the statutory presumption attributing possession to the defendant ,the defendant was not entitled to automatic standing.

2000While a violation of the Open Meetings Law alone may not be sufficient to invalidate the determination of the ZBA (see, Matter of Cipriano v Board of Zoning Appeals, supra), where, as here, there are other concerns regarding the procedures followed in granting the variances, the Supreme Court providently exercised its discretion in annulling the determination (see, Public Officers Law § 107; Matter of New York Univ. v Whalen, 46 NY2d 734 ).

2000While a violation of the Open Meetings Law alone may not be sufficient to invalidate the determination of the ZBA (see, Matter of Cipriano v Board of Zoning Appeals, supra), where, as here, there are other concerns regarding the procedures followed in granting the variances, the Supreme Court providently exercised its discretion in annulling the determination (see, Public Officers Law § 107; Matter of New York Univ. v Whalen, 46 NY2d 734 ).

1999Based on the evidence, the charge when viewed as a whole, adequately conveyed the appropriate legal principles to be applied (see, People v Ladd, 89 NY2d 893, 895 ).

1998There was ample evidence of guilt under the room presumption theory as well as under the theory of constructive possession, including evidence from which “a reasonable jury could conclude that only trusted members of the [drug] operation would be permitted to enter” the room in question (People v Bundy, 90 NY2d 918, 920 ).

1998Moreover, appellant’s own testimony, which is properly considered for purposes of reviewing the legal sufficiency and weight of the evidence (People v Kirkpatrick, 32 NY2d 17, 21 , appeal dismissed 414 US 948 ), cured any deficiency in the presentment agency’s case in this respect.

1998Moreover, appellant’s own testimony, which is properly considered for purposes of reviewing the legal sufficiency and weight of the evidence (People v Kirkpatrick, 32 NY2d 17, 21 , appeal dismissed 414 US 948 ), cured any deficiency in the presentment agency’s case in this respect.

1992Although, in the grand jury proceedings, the prosecution had not relied on the room presumption (Penal Law § 220.25 [2]) to establish defendant’s possession of contraband, its refusal to stipulate that it would not rely on the presumption at trial clearly bestowed upon defendant standing to contest the legality of the seizure (People v Tejada, 171 AD2d 585, 586 ).

1991And, since defendant’s suppression motion was prepared before the decision in People v Millan ( 69 NY2d 514 ), on which our decision in Mato was based, it would not be in the interests of justice to deny defendant the hearing he seeks on the ground that automatic standing was not urged in his suppression motion and is therefore not preserved for appel late review (cf., People v Knight, 138 AD2d 294 , appeal dismissed 73 NY2d 992 ).

1991While the People continue to urge upon us that the room presumption does not confer "automatic standing” to challenge a search, we adhere to our decision in People v Mato ( 160 AD2d 435 ) that it does (accord, People v Barrows, 155 AD2d 470 [2d Dept]; People v Stewart, 153 AD2d 597 [2d Dept]).

1991And, since defendant’s suppression motion was prepared before the decision in People v Millan ( 69 NY2d 514 ), on which our decision in Mato was based, it would not be in the interests of justice to deny defendant the hearing he seeks on the ground that automatic standing was not urged in his suppression motion and is therefore not preserved for appel late review (cf., People v Knight, 138 AD2d 294 , appeal dismissed 73 NY2d 992 ).

1989Applying the principle of Ponder ( 54 NY2d 160 , supra) that standing is commensurate with the interest to be protected, this court concludes that the issue of the fairness of the trial created by use of the room presumption generates standing to challenge a search and seizure based on a claim of lack of probable cause, but not the absence of a warrant.

1982(See People v Daniels, 37 NY2d 624 ; People v Lopez, 59 AD2d 767 ; People v Caban, 90 Misc 2d 43 .) As the court in People v Caban (supra, at p 44 ) stated: “In open view on the table were three stacks of glossine envelopes, each envelope containing heroin, and each stack bound by a rubber band.

1982(See People v Daniels, 37 NY2d 624 ; People v Lopez, 59 AD2d 767 ; People v Caban, 90 Misc 2d 43 .) As the court in People v Caban (supra, at p 44 ) stated: “In open view on the table were three stacks of glossine envelopes, each envelope containing heroin, and each stack bound by a rubber band.

1982(See People v Daniels, 37 NY2d 624 ; People v Lopez, 59 AD2d 767 ; People v Caban, 90 Misc 2d 43 .) As the court in People v Caban (supra, at p 44 ) stated: “In open view on the table were three stacks of glossine envelopes, each envelope containing heroin, and each stack bound by a rubber band.

1982(See People v Daniels, 37 NY2d 624 ; People v Lopez, 59 AD2d 767 ; People v Caban, 90 Misc 2d 43 .) As the court in People v Caban (supra, at p 44 ) stated: “In open view on the table were three stacks of glossine envelopes, each envelope containing heroin, and each stack bound by a rubber band.

1935Mary v. Feitner, 168 N. Y. 494, 497 .) The occasional use of a single room for instruction of backward children from the adjoining parochial school does not militate against this conclusion.

1931In the case of United States v. Davis ( 103 Fed. 457 ), where the separation of the jury was made the ground for new trial by defendant, it was held that he must show prejudice by something more than the bare fact of separation, unless the circumstances of the separation are of themselves sufficient to indicate prejudice, and that “ allowing a juror, under the eye of an officer having the jury in charge, to go into the lavatories and closets, to go to a drug and other stores, to ask the marshal for supplies, and to speak to men in the court room in the hearing of the marshal, is not such a sep

1931In the case of United States v. Davis ( 103 Fed. 457 ), where the separation of the jury was made the ground for new trial by defendant, it was held that he must show prejudice by something more than the bare fact of separation, unless the circumstances of the separation are of themselves sufficient to indicate prejudice, and that “ allowing a juror, under the eye of an officer having the jury in charge, to go into the lavatories and closets, to go to a drug and other stores, to ask the marshal for supplies, and to speak to men in the court room in the hearing of the marshal, is not such a sep