| People v Jennings |
| 2013 NY Slip Op 06384 [110 AD3d 738] |
| October 2, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Clyde Jennings, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Guy Arcidiacono of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Hinrichs, J.), rendered December 10, 2009, convicting him of criminal possession of aweapon in the second degree, criminal possession of a weapon in the third degree, andresisting arrest, upon a jury verdict, and imposing sentence. The appeal brings up forreview the denial, without a hearing (Efman, J.), of that branch of the defendant'somnibus motion which was to suppress physical evidence.
Ordered that the matter is remitted to the County Court, Suffolk County, for ahearing and a new determination thereafter of that branch of the defendant's omnibusmotion which was to suppress physical evidence, and the appeal is held in abeyance inthe interim. The County Court, Suffolk County, shall file its report with all convenientspeed.
The defendant was arrested and charged with, among other things, criminalpossession of a weapon in the second and third degrees after police officers approached avehicle which he had just exited and, shortly thereafter, recovered a gun which heallegedly threw to the ground in the vicinity of the vehicle. The County Court denied thatbranch of the defendant's omnibus motion which was to suppress the gun withoutconducting a hearing.
A motion to suppress evidence must state the grounds of the motion and containsworn allegations of fact supporting such grounds (see CPL 710.60 [1]; Matter of Shaundale W., 82AD3d 1254, 1255 [2011]; People v Wright, 54 AD3d 695, 696 [2008]). "It isfundamental that a motion may be decided without a hearing unless the papers submittedraise a factual dispute on a material point which must be resolved before the court candecide the legal issue" (People vMontero, 44 AD3d 796, 796 [2007] [internal quotation marks omitted];see CPL 710.60 [3] [b]; People v Wright, 54 AD3d at 696). In testing thesufficiency of a defendant's factual allegations, a court should consider "(1) the face ofthe pleadings, (2) assessed in conjunction with the context of the motion, and (3)defendant's access to information" (People v Mendoza, 82 NY2d 415, 426[1993]).
Here, the allegations in the defendant's papers, when considered in the context of theinformation provided by the People, raised a factual dispute requiring a hearing (cf. People v Holloway, 45AD3d 477, 477 [2007]). Contrary to the People's contention, the defendant's motionpapers [*2]contained the requisite sworn allegations offact (see People v Mendoza, 82 NY2d at 428; cf. People v Gadsden, 273AD2d 701, 701 [2000]). Moreover, the defendant was not required to demonstrate thathe had a legitimate expectation of privacy in the area where the gun was found (seegenerally People v Ramirez-Portoreal, 88 NY2d 99 [1996]), since, under both thedefendant's and the People's versions of events, the dispositive issue was whether the gunwas recovered as a direct result of unlawful police action (see People v Boodle,47 NY2d 398, 402 [1979], cert denied 444 US 969 [1979]). In light of theforegoing, the County Court should not have denied suppression without conducting ahearing. Accordingly, we remit the matter to the County Court, Suffolk County, for ahearing and a new determination thereafter of that branch of the defendant's motionwhich was to suppress physical evidence.
We decide no other issues at this time. Skelos, J.P., Balkin, Austin and Sgroi, JJ.,concur.