People v. Wheatman

McNally, J.

On the application of the District Attorney during the February 1970 Term, we granted reargument of the appeal with reference to defendant Wheatman (33 A D 2d 1107). The judgments of conviction herein were previously reversed on the law, and a new trial directed, Justices McNally and Tilzer dissenting, (33 A D 2d 67) and voting to affirm. The reversal was grounded on the invalidity of the search warrant and the suppression of the evidence discovered.

In support of reargument with reference to Wheatman, the District Attorney argues that the search warrant was not directed against Wheatman and that his property was not seized and he, therefore, was neither the victim nor the person against whom the search was directed. It is argued Wheatman has no standing since his constitutional rights were not infringed, and he cannot be heard to complain of the violation of the constitutional rights of another. Whether the person claiming standing has been a victim of constitutional infringement depends on the facts in each case and the person’s relation to the objects seized or premises searched. (People v. Estrada, 28 A D 2d 681, affd. 23 N Y 2d 719; People v. Morhouse, 21 N Y 2d 66, 76.) Only “ a person claiming to be aggrieved by an unlawful search and seizure ” has standing to move to suppress. (Code Crim. Pro., § 813-c.) See, also, Jones v. United States (362 U. S. 257, 261).

Defendant Wheatman fails ,to establish he was the victim or the person against whom the search was directed. His claim that the seized evidence was used against him without a showing that it is the product of an illegal search of his person or his premises does not establish the violation of a protected constitutional right. (Alderman v. United States, 394 U. S. 165; People v. Cefaro, 21 N Y 2d 252, 257, revd. on rearg. on other grounds 23 N Y 2d 283.)

Accordingly, on reargument the order of November 6, 1969 should be modified to affirm the conviction of appellant Wheatman.