Anthony S., In re
| Decision Date | 26 June 1990 |
| Parties | In re ANTHONY S., etc., Respondent-Appellant. Presentment Agency-Respondent. |
| Court | New York Supreme Court — Appellate Division |
S.D. Fitzpatrick, Ossining, for respondent-appellant.
M. Kallus, New York City, for presentment agency-respondent.
Before MURPHY, P.J., and ROSS, MILONAS, KASSAL and WALLACH, JJ.
Order of Disposition, Family Court, New York County (Kathryn McDonald, J.), entered August 1, 1985 finding that appellant committed acts which, if committed by an adult, would constitute the crimes of criminal possession of a weapon in the fourth degree, attempted escape in the second degree and obstructing governmental administration, and which granted appellant a conditional discharge on condition that he be placed under the jurisdiction of New Jersey Courts, modified, on the law, to the extent of reversing the order summarily denying the motion to suppress and remanding for further proceedings, without costs.
On appeal, respondent argues, inter alia, that the Court at the fact-finding hearing improperly exercised its discretion in summarily denying his oral motion to suppress the gun seized. We agree. Although a motion to suppress is required to be made prior to the fact-finding (see, FCA § 330.2[2], if good cause is shown why the motion was not made prior to the commencement of the fact-finding, a Court may entertain the motion (see FCA §§ 330.2[2], 332.2[3].
Because the respondent was detained, and the petition's highest count was less than a C-felony, a fact-finding hearing was required to be commenced no more than three days after the conclusion of the initial appearance (see FCA § 340.1). At the fact-finding, respondent's counsel orally moved to suppress the gun seized, explaining that her delinquency in bringing the motion was due to her appointment as counsel only four days prior to the fact-finding, and because of her lack of opportunity to communicate with the detained respondent. Under these circumstances, we find that it was an abuse of discretion not to entertain respondent's motion. We also note that a compelling argument for suppression is made by counsel which, if proved, would warrant suppression and dismissal of the petition.
Following our review of the record as a whole, and giving every inference favorable...
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Jesse H., Matter of
...(see generally, New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550; People v. Howard, supra; cf., Matter of Anthony S., 162 A.D.2d 325, 557 N.Y.S.2d 11). Viewing the evidence in the light most favorable to the petitioner (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349......
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