| People v Battle |
| 2013 NY Slip Op 06168 [109 AD3d 1155] |
| September 27, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v StarletBattle, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua, for respondent.
Appeal from a judgment of the Ontario County Court (Frederick G. Reed, A.J.),rendered September 20, 2011. The judgment convicted defendant, upon her plea ofguilty, of burglary in the second degree, assault in the second degree, resisting arrest,grand larceny in the fourth degree and criminal possession of stolen property in thefourth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting her upon her plea of guilty of,inter alia, burglary in the second degree (Penal Law § 140.25 [1] [b]), assault inthe second degree (§ 120.05 [3]) and resisting arrest (§ 205.30), defendantcontends that County Court erred in denying her suppression motion without a hearing.In her motion, defendant sought to suppress, inter alia, evidence obtained by the policeafter defendant was arrested for stealing items from a Walmart store in the Town ofVictor. Defendant had previously been banned from entering all Walmart stores due to arecent conviction of grand larceny in Onondaga County. The court summarily denied thesuppression motion, and defendant thereafter pleaded guilty to the entire indictment. Inreturn for the plea, the court promised to impose the minimum sentence and to sentencedefendant concurrently to the sentences she was to receive for violating the terms andconditions of probation imposed for felony convictions in Onondaga and JeffersonCounties. We affirm.
We agree with defendant that the court erred in ruling that defendant, in order to beentitled to a suppression hearing, was required to submit an affidavit in support of hermotion. As the Court of Appeals has stated, "suppression motions must be in writing,state the legal ground of the motion and 'contain sworn allegations of fact,' made bydefendant or 'another person' " (People v Mendoza, 82 NY2d 415, 421[1993], quoting CPL 710.60 [1] [emphasis added]). A suppression motion may be basedon factual allegations made upon information and belief by defense counsel, providedthat, as here, the sources of the attorney's information and the grounds of his or her beliefare identified in the motion papers (see CPL 710.60 [1]). The court also erred insuggesting that defendant was required to deny participation in the crime. It is wellsettled that a defendant must either "deny participating in the transaction or suggestsome other grounds for suppression" in order to warrant a suppression hearing(see Mendoza, 82 NY2d at 429 [emphasis [*2]added]).
In addition, we reject the People's contention that the court's summary denial of themotion was proper because defendant failed to specify in her motion papers the evidencesought to be suppressed. Although the motion papers were vague in that regard, defensecounsel stated during oral argument of the motion that defendant was seekingsuppression of the physical evidence obtained by the police from her person and herhandbag. Indeed, before the court ruled on the motion, the prosecutor acknowledged thatdefense counsel had sufficiently clarified defendant's request. In any event, the court didnot deny defendant's motion due to an alleged lack of specificity, and thus we could notaffirm on that basis (see CPL 470.15 [1]; People v Concepcion, 17 NY3d 192, 194-195 [2011]).
Nevertheless, we agree with the People that the court properly denied the motionwithout a hearing on the grounds that the factual assertions contained in defendant'smoving papers were insufficient to warrant a hearing (see People v Kirk, 27 AD3d383, 384 [2006], lv denied 6 NY3d 895 [2006]). Although a defendant"need not prove his entire case in the motion papers" (People v Lopez, 263 AD2d434, 435 [1999]), a hearing is "not available merely for the asking" (Mendoza, 82NY2d at 425 [internal quotation marks omitted]). "[T]he sufficiency of defendant'sfactual allegations should be evaluated by (1) the face of the pleadings, (2) assessed inconjunction with the context of the motion, and (3) defendant's access to information"(id. at 426).
Here, the documents provided to defendant, including the application for the searchwarrant that was signed by the court, gave her "enough information upon which to makea proper suppression motion" (People v Roberts, 23 AD3d 245, 246 [2005], lv denied6 NY3d 817 [2006]). Those documents demonstrated that defendant and hercodefendants were observed by an off-duty police officer engaging in conduct thatreasonably led the officer to believe that they were stealing DVDs from the store. Indeed,defendant does not dispute that the off-duty officer had probable cause to arrest her.Defendant contends, however, that she is entitled to a hearing to determine whether thearresting officer had probable cause to make the arrest. Although it is true, as defendantasserts, that the off-duty officer did not provide the arresting officer with a specificdescription of defendant, the warrant application establishes that the off-duty officerprovided the arresting officer with a contemporaneous account of defendant's actions.Notably, as defendant was leaving the store, the off-duty officer notified the arrestingofficer of that fact. While waiting in the parking lot outside, the arresting officerapproached defendant as she exited the store and attempted to arrest her, whereupondefendant fled and then resisted arrest, causing an injury to the officer in the process. Inher affirmation submitted in support of the motion, defense counsel merely alleged thatthe arrest was unlawful because the arresting officer "did not have specific information"about defendant when he approached defendant. That assertion, under the facts of thiscase, was insufficient to trigger the need for a suppression hearing (see People vJones, 95 NY2d 721, 728-729 [2001]). Present—Scudder, P.J., Centra,Lindley and Whalen, JJ.