People v Encarnacion-Cross

People v Encarnacion-Cross 2015 NY Slip Op 07219 Decided on October 6, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 6, 2015
Gonzalez, P.J., Mazzarelli, Sweeny, Richter, Manzanet-Daniels, JJ.
15774 685/13

[*1] The People of the State of New York, Respondent,

v

Jose Encarnacion-Cross, Defendant-Appellant.

Law Office of Lawrence M. Fisher, New York (Stephen Preziosi of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Lee M. Pollack of counsel), for respondent.

Judgment, Supreme Court, New York County (Renee A. White, J. at motions; Rena K. Uviller, J. at jury trial and sentencing), rendered November 21, 2013, convicting defendant of criminal possession of a controlled substance in the first degree, and sentencing him to a term of eight years, unanimously affirmed.

The court properly denied defendant's suppression motion on the ground that he lacked standing to challenge the search of the livery cab in which he was a passenger. Defendant provided no sworn allegations of fact to establish he had a reasonable expectation of privacy in the back seat of the cab, where the police found a bag containing drugs. The automatic standing rule set forth in People v Millan (69 NY2d 514 [1987]) did not apply, because since the People did not, at any stage of the proceedings, rely solely on the automobile presumption contained in Penal Law § 265.15(3) to establish defendant's guilt (see People v Cheatham, 54 AD3d 297 [2008], lv denied 11 NY3d 854 [2008]). Moreover, at trial the People did not rely on the presumption at all, and the court gave no such instruction to the jury.

Defendant did not preserve his claims regarding events that transpired during jury deliberations, and there were no mode of proceedings errors exempt from preservation requirements (see People v Hanley, 20 NY3d 601, 604-605 [2013]; People v Agramonte, 87 NY2d 765, 770 [1996]). We decline to review these unpreserved claims in the interest of justice. As an alternative holding, we find no basis for reversal.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 6, 2015

CLERK