People v. Traynham

received an indeterminate sentence of imprisonment not to exceed seven years. This appeal ensued. A threshold question is whether defendant has “standing” to challenge the “search” of the vehicle and “seizure” of the fur coats as violative of her Fourth Amendment rights. Although possession of the property seized is an essential element of the crime charged, a defendant may no longer claim “automatic” standing on this basis alone (United States v Salvucci, 448 US 83 ; People v Ponder, 54 NY2d 160 ). The correct inquiry is whether defendant herself had a “legitimate or reasonable expectation of privacy” in the area searched (Rakas v Illinois, 439 US 128 ,148-149; People v Ponder, supra). On the facts presented, no such expectation of privacy is apparent and defendant is without standing (see People v Ponder, supra). Moreover, the challenged search did not violate any of defendant’s constitutional rights. The officer was lawfully present in the automobile, the items seized were in plain view, and their incriminatory nature was readily apparent from the attached sales slips (see People v Battaglia, 82 AD2d 389 , 395). Under these circumstances, the search and eventual seizure were in all respects proper (Harris v United States, 390 US 234 ; People v Jackson, 41 NY2d 146 , 149-150). Next, defendant raises the contention that the circumstantial evidence against her was insufficient to sustain the conviction. She argues that as a passenger in the vehicle, she never “knowingly possessed” the stolen furs. Possession may be constructive and if the defendant exercised dominion and control over the stolen property, she may be found guilty of possessing the contents of the vehicle although she was not driving it (see Penal Law, § 10.00, subd 8; People v Hadley, 67 AD2d 259 , 262, citing People v Peters, 43 AD2d 599 ; People v Howard, 37 AD2d 178 , 180). Generally, possession itself permits an inference the possessor knows what he possesses (People v Hadley, 67 AD2d 259 , 262, supra, citing People v Reisman, 29 NY2d 278 , 285). Knowledge, like any other fact, may be proved circumstantially by the conduct of the defendant. The facts show a close proximity in time between the burglary of the retail store and recovery of the stolen furs; the presence of an unidentified passenger in the vehicle at the burglary scene; an activated radio scanner in the stolen vehicle; and an attempt on defendant’s part to flee. Where the sufficiency of the circumstantial evidence is at issue, the facts are viewed most favorably to the People (People v Benzinger, 36 NY2d 29 ,32). In our view, there is sufficient evidence in the record from which the jury could have determined that defendant was aware of the stolen property and exercised some dominion and control over it. We have examined defendant’s remaining contentions and find them to be without merit. The witness’ testimony connecting the vehicle from which defendant fled to the burglary scene, is directly probative of the issue of “knowing possession” of the furs (see People v McKinney, 24 NY2d 180 , 184-185; People v Rose, 84 AD2d 645 ). We find no abuse of discretion by the sentencing court (People v Tagliamonte, 78 AD2d 565 ; People v Dittmar, 41 AD2d 788 ). Finally, the trial court properly denied, without a hearing, defendant’s GPL 440.10 motion to vacate the judgment of conviction (People v Ford, 46 NY2d 1021 ,1023). Judgment and order affirmed. Kane, J. P., Main, Casey, Yesawich, Jr., and Weiss, JJ., concur.