| People v Scott |
| 2007 NY Slip Op 07535 [44 AD3d 427] |
| October 11, 2007 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Sylvester Scott, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York City (Martin J. Foncello of counsel),for respondent.
Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered June 22, 2005,convicting defendant, upon his plea of guilty, of attempted burglary in the second degree, andsentencing him, as a second felony offender, to a term of three years, unanimously affirmed.
The court properly denied defendant's suppression motion without granting a hearing. It wasclear from the materials available to defendant, including the felony complaint and voluntarydisclosure form, that he was arrested after being pointed out in a canvass procedure by at leastone eyewitness who knew him, and that defendant was seen leaving the location of a burglarywhile transporting a stove, where one dwelling in the building was found to be missing such anappliance. Defendant's conclusory assertions of innocent behavior did not controvert theseallegations, as defendant never specifically denied that he had taken a stove out of the building atthe time of the burglary (see People vBurton, 6 NY3d 584, 589-590 [2006]; People v Roldan, 37 AD3d 300 [2007], lv denied 9 NY3d850 [2007]). Defendant did not set forth any other basis for suppression. His assertion that he didnot match the description given did not warrant a hearing, since it was clear from the discoverymaterials that he was not arrested on the basis of a description. Moreover, defendant did not setforth his own description to enable the court to make a comparison in the event the Peoplefurnished any description given by a witness (see People v Jones, 95 NY2d 721, 729[2001]). Similarly, defendant failed to set forth any facts related to the search of his bag thatwould warrant a hearing, but merely argued, in a conclusory [*2]manner, that the police could not reasonably have feared for theirsafety. Concur—Tom, J.P., Mazzarelli, Friedman, Sullivan and Nardelli, JJ.