| People v Dunnell |
| 2008 NY Slip Op 03986 [50 AD3d 606] |
| April 29, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Charlie Dunnell, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Jung Park of counsel), forrespondent.
Appeal from judgment, Supreme Court, New York County (Micki A. Scherer, J., at motion;Richard D. Carruthers, J., at jury trial and sentence), rendered August 1, 2006, convictingdefendant of grand larceny in the fourth degree, and sentencing him, as a second felony offender,to a term of 2 to 4 years, held in abeyance and the matter remanded for a suppression hearing.
Relying on this Court's decision in People v Burton (16 AD3d 241 [2005]), the motion courtsummarily denied defendant's suppression motion solely on the ground of lack of standing.However, as the People concede, defendant established standing in light of the principles setforth by the Court of Appeals in its decision reversing this Court's order in Burton (6NY3d 584 [2006]). We also note that the Court of Appeals decided Burton afterdefendant's motion but before his trial, and when defendant called the trial court's attention to thereversal, that court improperly refused to either send the motion back to the motion court forreconsideration or to address the issue itself. We also conclude that defendant's moving paperswere sufficient to warrant a hearing when considered in the context of the limited informationprovided by the People as to the basis for his arrest. Although the felony complaint and voluntarydisclosure form revealed that defendant was arrested for stealing money from a complainant in anincident that had occurred about 20 minutes before the arrest, the People did not disclose anyfacts explaining why the police suspected defendant of this theft (compare People v Bryant, 8 NY3d530, 533-534 [2007], with People vRoldan, 37 AD3d 300 [2007], lv denied 9 NY3d 850[*2][2007]). Under these circumstances, defendant's denial of havingcommitted any theft was sufficient to warrant a hearing (see People v Hightower, 85NY2d 988 [1995]). Concur—Tom, J.P., Mazzarelli, Andrias and Williams, JJ.