| People v McCutheon |
| 2012 NY Slip Op 04944 [96 AD3d 580] |
| June 19, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Kareem McCutheon, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Beth Fisch Cohen of counsel), forrespondent.
Appeal from judgment, Supreme Court, New York County (Carol Berkman, J.), renderedMay 28, 2008, convicting defendant, upon his plea of guilty, of attempted criminal possession ofa weapon in the third degree, and sentencing him, as a second violent felony offender, to a termof three years, held in abeyance, and the matter remitted for a de novo suppression hearing beforeanother Justice.
The hearing court denied suppression after crediting police testimony about thecircumstances leading to the recovery of pistol in the course of the stop of a livery cab in whichdefendant was a passenger. However, the People failed to disclose grand jury testimony by thecab driver that materially contradicted the police account of the incident. A defendant is entitledto disclosure of favorable "evidence of a material nature which if disclosed could affect theultimate decision on a suppression motion" (People v Geaslen, 54 NY2d 510, 516[1981]).
As the People concede, defendant is entitled to a reopened suppression hearing (seePeople v Feerick, 93 NY2d 433, 451-452 [1999]). We reject defendant's argument that, onthis appeal, this Court should accept the driver's account of the incident and grant suppression.Instead, the suppression court should make the necessary credibility determinations "with itspeculiar advantages of having seen and heard the witnesses" (People v Prochilo, 41NY2d 759, 761 [1977]).
Contrary to defendant's argument, the principle set forth in People v Havelka (45NY2d 636 [1978]) does not preclude a reopened hearing. "[T]here is no claim here that thePeople's proof at the suppression hearing was insufficient; the claim was that there was an errorat the [*2]hearing—that, because of the nondisclosure ofBrady material, defendant did not have a fair chance to refute the People's case" (People v Williams, 7 NY3d 15, 21[2006]). Concur—Sweeny, J.P., Catterson, Acosta, Freedman and Román, JJ.