| People v White |
| 2016 NY Slip Op 02388 [137 AD3d 1311] |
| March 30, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Oscar White, Appellant. |
David L. Cohen, Kew Gardens, NY, for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, Nicoletta J. Caferri, and Rona I. Kugler of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Griffin, J.), rendered October 9, 2014, convicting him of criminal possession of acontrolled substance in the fourth degree, upon a jury verdict, and imposing sentence.The appeal brings up for review the denial, without a hearing (Lopez, J.), of that branchof the defendant's omnibus motion which was to suppress physical evidence.
Ordered that the matter is remitted to the Supreme Court, Queens 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 Supreme Court, Queens County, shall file its report with all convenientspeed.
The defendant was arrested and charged with criminal possession of a controlledsubstance in the fourth degree based on allegations that, after police officers approachedhis location in their marked vehicle, they recovered a plastic bag containing cocainewhich the defendant had thrown to the ground. In an affirmation in support of thatbranch of the defendant's omnibus motion which was to suppress the physical evidence,or for a hearing in connection therewith, the defendant's counsel affirmed that his client,although engaged in no unlawful activity, was approached and ordered to stop by police,that he was asked to produce identification, and that after he complied with this request,the police conducted a search which yielded the drugs. The Supreme Court denied thatbranch of the omnibus motion without a hearing. The defendant then moved for leave toreargue, and counsel clarified that a search of the defendant's person resulted in therecovery of the drugs, that the police had no reason to believe that the defendant wasarmed and dangerous, and that the search was not incident to a lawful arrest. The court,in effect, granted leave to reargue, and upon reargument, adhered to its originaldetermination denying that branch of the omnibus motion without a hearing, reasoningthat the factual allegations presented by the defense did not refute the prosecution'saccount that the defendant had thrown the bag of drugs away, thereby abandoning it.
A motion to suppress evidence must state the grounds therefor, and must recitesworn factual allegations which support those 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 [*2]decided without ahearing unless the papers submitted raise a factual dispute on a material point which mustbe resolved before the court can decide the legal issue" (People v Montero, 44 AD3d796, 796 [2007] [internal quotation marks omitted]; see CPL 710.60 [3] [b];People v Wright, 54 AD3d at 696). In reviewing the adequacy of a defendant'sfactual allegations, a court should consider "(1) the face of the pleadings, (2) assessed inconjunction with the context of the motion, and (3) defendant's access to information"(People v Mendoza, 82 NY2d 415, 426 [1993]).
Here, the defendant's papers contained the requisite sworn allegations of fact which,when considered in the context of the information provided by the prosecution, raised aclear factual dispute warranting a hearing (see People v Jennings, 110 AD3d 738, 739 [2013];People v Garcia, 250 AD2d 701, 702 [1998]; People v Wright, 244 AD2d517 [1997]; People v Ayarde, 220 AD2d 519, 520 [1995]; People vLopez, 212 AD2d 549, 550 [1995]). Accordingly, the denial of suppression withouta hearing was error, and we remit the matter to the Supreme Court, Queens County, for ahearing and a new determination thereafter of that branch of the defendant's omnibusmotion which was to suppress physical evidence. Mastro, J.P., Chambers, Miller andHinds-Radix, JJ., concur.