People v. Vazquez , 97 A.D.2d 524 ( 1983 )

Appeal by defendant from a judgment of the Supreme Court, Queens County (Glass, J.), rendered May 20, 1982, convicting him of criminal possession of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence. Judgment affirmed, and case remitted to the Supreme Court, Queens County, for further proceedings pursuant to CPL 460.50 (subd 5). Defendant moved pursuant to CPL 210.40 to dismiss, in the interest of justice, an indictment charging him with criminal possession of a controlled substance in the first degree and criminally using drug paraphernalia in the second degree. Following the denial of the motion, defendant pleaded guilty to criminal possession of a controlled substance in the third degree in satisfaction of the indictment. Defendant now appeals, alleging, inter alia, that his motion was improperly denied. However, by pleading guilty, defendant has waived his right to object to the denial of the motion (People v Thomas, 74 AD2d 317, affd 53 NY2d 338; People v O’Brien, 84 AD2d 567; People v Rodriquez, 79 AD2d 539). Defendant also claims that Criminal Term erred in refusing to suppress his statement acknowledging ownership of the money that was seized herein, although the court found that the seizure of the physical evidence itself was improper. The People raise for the first time on appeal the question of defendant’s standing to challenge the search of the apartment. We do not agree with our dissenting colleague that said objection was waived by the People since they failed to raise it at the suppression hearing. The hearing was held nearly one month after the Court of Appeals decision in People v Ponder (54 NY2d 160, 164) which abolished the “automatic standing” rule and held that a defendant has the burden of demonstrating that he had a reasonable expectation of privacy (see, also, United States v Salvucci, 448 US 83; Rakas v Illinois, 439 US 128). Defendant in the instant case failed to meet that burden. The fact that the People did not raise this issue at the hearing, and, in fact, sought to connect defendant with the premises in order to prove that the contraband seized was his, does not mandate a different conclusion. The standing issue presents a question of law. Even had the People expressly conceded the issue, it would not be binding on the court (United States v Tortorello, 533 F2d 809, cert den 429 US 894; United States v Banerman, 552 F2d 61). Thus, defendant’s failure to demonstrate that he has standing to challenge the search is fatal to the claim that his statement should have been suppressed. Defendant’s other contentions have been considered and found to be without merit. Brown, Niehoff and Rubin, JJ., concur.