Not overruled or negatively treated on appealinfoCoverage
Court of Appeals of the State of New YorkNov 19, 1975
37 N.Y.2d 935 (N.Y. 1975)
37 N.Y.2d 935343 N.E.2d 286380 N.Y.S.2d 646

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Argued October 17, 1975

Decided November 19, 1975

Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, ALBERT H. BOSCH, J.

S. Mac Gutman for appellant.

Nicholas Ferraro, District Attorney (Roberta L. Dunlop of counsel), for respondent.

MEMORANDUM. Order of the Appellate Division is affirmed.

The first issue raised by defendant relates to his being asked at trial whether he participated in an armed robbery in which a victim was killed. He denied it. While defendant's appellate counsel argues that defendant was never charged or convicted for a robbery homicide, there is no support in the record for this assertion. The factual basis for the questioning was never properly challenged by defense counsel (cf. People v Council, 37 N.Y.2d — People v Kuss, 32 N.Y.2d 436, 443-444; People v Kass, 25 N.Y.2d 123, 126; People v Alamo, 23 N.Y.2d 630, 634-635). Indeed, the record in its present state establishes neither the lack of a factual basis for the questioning nor the veracity of defendant's denial. Of course, the denial was binding so as to preclude its contradiction by the People through the production of extrinsic evidence or the calling of other witnesses (see, e.g., People v Duncan, 13 N.Y.2d 37, 47). In any event, the Trial Justice properly charged the jury that defendant's past, which included his admitted conviction for bank robbery, was not a direct issue in the case, but was limited to evaluating defendant's credibility as a witness. There was, therefore, no error, let alone prejudicial error.

The second issue raised by defendant on appeal concerns the warrantless search of an automobile registered to the ownership of his codefendant on trial and alleged accomplice. At the time of the search the car was in the actual possession of a repairman, and in the constructive legal possession of a finance company. Hence, assuming, without deciding, that the codefendant's motion to suppress inured to defendant's benefit, neither the codefendant nor defendant had standing to assert illegality of the search, and, moreover, the search was not illegal (cf. United States v Dye, 508 F.2d 1226, 1232-1234; see, generally, Commentary to article 290, ALI Model Code of Pre-Arraignment Procedure, at pp 560-562 [Proposed Official Draft 1975]). Codefendant's right to redeem the car was not a possessory but an ownership interest, and a contingent one at that not sufficient to continue the codefendant's right to privacy with respect to the automobile he once owned and possessed as a conditional purchaser (cf. Schnitzer v Fruehauf Trailer Co., 283 App. Div. 421, 427, affd 307 N.Y. 876). To be sure, the Supreme Court hardly intended to incorporate all the niceties of the law of property into the law of standing (see Jones v United States, 362 U.S. 257, 265-267).

While I agree with the result, I find it undesirable to make the assumption of the majority on the issue of standing in order to reach such result. More simply stated, defendant himself neither moved to suppress nor had the standing to do so under the test as applied in Brown v United States ( 411 U.S. 223, 229).

Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER and FUCHSBERG concur; Judge COOKE concurs in result in a separate memorandum.

Order affirmed in a memorandum.