| People v Jones |
| 2015 NY Slip Op 07392 [132 AD3d 1388] |
| October 9, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJustin Jones, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Jane I. Yoon of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (John J. Ark, J.),rendered August 14, 2012. The judgment convicted defendant, upon his plea of guilty, ofcriminal possession of a weapon in the second degree.
It is hereby ordered that the case is held, the decision is reserved and the matter isremitted to Supreme Court, Monroe County, for further proceedings in accordance withthe following memorandum: On appeal from a judgment convicting him, upon his guiltyplea, of criminal possession of a weapon in the second degree (Penal Law§ 265.03 [3]), defendant contends that Supreme Court erred in denying hisrequest for a probable cause hearing to determine the lawfulness of his arrest and theadmissibility of evidence obtained by the police as a result thereof. We agree. As thePeople correctly concede, the court erred in determining that defendant was not entitledto a hearing because his motion papers did not include an affidavit from defendant(see CPL 710.60 [1]; People v Mendoza, 82 NY2d 415, 421 [1993]; People v Battle, 109 AD3d1155, 1156 [2013], lv denied 22 NY3d 1038 [2013]). The court also erred indetermining that the factual assertions contained in defendant's moving papers wereinsufficient to warrant a hearing.
In determining whether a hearing is required pursuant to CPL 710.60, "thesufficiency of defendant's factual allegations should be evaluated by (1) the face of thepleadings, (2) assessed in conjunction with the context of the motion, and (3) defendant'saccess to information" (Mendoza, 82 NY2d at 426). Here, consideringdefendant's limited access to information regarding the basis for the actions of thearresting officers, he "could do little more than dispute the circumstances surrounding hisarrest . . . [D]efendant's lack of access to information precluded morespecific factual allegations and created factual disputes, the resolution of which requireda hearing" (People v Bryant,8 NY3d 530, 534 [2007]). Thus, "[w]e conclude that, under the circumstances,defense counsel's affirmation was sufficient to raise a factual issue necessitating ahearing" (People v Fagan, 203 AD2d 933, 933 [1994]). We therefore hold thecase, reserve decision and remit the matter to Supreme Court to conduct a suppressionhearing. Present—Scudder, P.J., Smith, Carni, Lindley and DeJoseph, JJ.