B. Standing

• Jurisdiction: New York

B. Standing

A motion to suppress physical evidence may be brought only by an accused who is "aggrieved by unlawful or improper acquisition of evidence" that may be introduced against him or her.³⁶² Consequently, in order for counsel to move to suppress physical evidence, counsel must set forth sufficient facts to show that his or her client has standing to contest the search.³⁶³

Except for the statutory presumptions discussed below, the "automatic standing" rule has been abrogated, and an accused must establish a legitimate expectation of privacy in the premises searched or the property seized,³⁶⁴ and that such expectation was objectively reasonable.³⁶⁵

In People v. Wesley,³⁶⁶ the Court of Appeals set forth the requirements an accused must meet to establish standing to contest an unlawful search and seizure. An accused must be able to show that he or she was the person against whom the search was directed. He or she cannot simply be the owner of something that is seized from another. The court explicitly stated that Fourth Amendment rights are personal, and an accused must be able to establish a violation of personal rights to have standing.

The burden of establishing standing is on the accused. In certain factual situations, standing has been conceded. Where the People rely upon a statutory presumption such as the "room presumption" or "automobile presumption," they cannot at the same time contest the accused's standing to challenge the search.³⁶⁷ Standing may also be conferred by the papers filed by the prosecution³⁶⁸ or testimony at the suppression hearing elicited solely from the People's witnesses.³⁶⁹

Where the accused is arrested in an apartment, the court will consider the accused's nexus to the apartment, for example, the number of times he or...