177 A.D.2d 809, People v. Weaver

Citation:177 A.D.2d 809, 576 N.Y.S.2d 424
Party Name:People v. Weaver
Case Date:November 21, 1991
Court:New York Supreme Court Appelate Division, Third Department
 
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Page 809

177 A.D.2d 809

576 N.Y.S.2d 424

The PEOPLE of the State of New York, Appellant,

v.

Bernard H. WEAVER, Respondent.

Supreme Court of New York, Third Department

November 21, 1991.

Paul Czajka, Dist. Atty. (H. Neal Connolly, of counsel), Hudson, for appellant.

Gleason, Dunn, Walsh & O'Shea (Mark Walsh, of counsel), Albany, for respondent.

Before MAHONEY, P.J., and CASEY, LEVINE, MERCURE and HARVEY, JJ.

MAHONEY, Presiding Justice.

Appeals (1) from an order of the County Court of Columbia County (Zittell, J.), entered June 1, 1990, which, inter alia, partially granted defendant's motion to suppress evidence, and (2) from an order of said court, entered May 23, 1990, which granted defendant's motion to dismiss count No. 1 of the indictment.

On April 26, 1989, defendant was charged by indictment with seven counts of third degree sodomy stemming from alleged acts with a male victim under 17 years of age. Defendant thereafter moved to, inter alia, dismiss count No. 1 of the indictment as barred by the Statute of Limitations and to exclude from trial tape recordings of conversations between himself and the alleged victim. Defendant also moved to suppress statements he allegedly made to investigating officers from the State Police and District Attorney's office.

Several proceedings in County Court followed, including a Huntley hearing to determine the admissibility of defendant's statements to the above-mentioned officers and a Ventimiglia hearing to determine the admissibility of certain prior bad acts of defendant. County Court thereafter entered an order which, inter alia, granted [576 N.Y.S.2d 425] defendant's motion to suppress the tape recording as inaudible and to suppress the incriminating statements given by defendant to the investigating officers. County Court also denied the People's motion to introduce defendant's prior bad acts and separately ordered count No. 1 of the indictment dismissed as barred by the Statute of Limitations. This appeal followed.

Page 810

We affirm. As a preliminary matter, we note that because neither the suppression of the tape recording nor the Ventimiglia prior bad acts was pursuant to CPL 710.20, neither part of the order suppressing them is appealable at this juncture of the proceedings (see, CPL 450.20[8]; see also, People v. Garofalo, 71 A.D.2d 782, 419 N.Y.S.2d 784, appeal dismissed 49 N.Y.2d 879, 427 N.Y.S.2d 990...

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