Opinion
August 12, 1991
Appeal from the Supreme Court, Kings County (Marano, J.).
Ordered that the judgment is affirmed.
Since the defendant was not charged with criminal possession of a controlled substance under a statutory presumption (see, Penal Law § 220.25), it follows that he did not have automatic standing to challenge the search of the livery cab in which he was a passenger (see, People v Wesley, 73 N.Y.2d 351; People v McCary, 173 A.D.2d 856; People v Metz, 168 A.D.2d 515; People v Castellar, 159 A.D.2d 312). The rule of People v Millan ( 69 N.Y.2d 514), relied upon by the defendant, applies only in cases where the prosecution has charged the defendant with possession of contraband based upon a statutory presumption (see, People v Wesley, supra). Since the defendant did not prove that he had a legitimate expectation of privacy in the vehicle which was searched, the hearing court properly concluded that he lacked standing. Thompson, J.P., Bracken, Harwood and Balletta, JJ., concur.