Gilbert O., Matter of

• Decision Date: 12 May 1992
• Citation: 584 N.Y.S.2d 533,183 A.D.2d 466
• Parties: In the Matter of GILBERT O., A Person Alleged to be A Juvenile Delinquent, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 533

584 N.Y.S.2d 533

183 A.D.2d 466

In the Matter of GILBERT O., A Person Alleged to be A Juvenile Delinquent, Appellant.

Supreme Court, Appellate Division First Department.

May 12, 1992.

Before CARRO, J.P., and KUPFERMAN, ASCH and SMITH, JJ.

MEMORANDUM DECISION.

Appeal from the dispositional order of the Family Court (Leah Marks, J.), entered March 11, 1991, finding respondent guilty of acts which, if committed by an adult, would constitute the crime of criminal possession of a controlled substance in the third degree and placing respondent under the supervision of the Department of Probation for eighteen months is held in abeyance, without costs. The case is remanded to the Family Court for a Mapp hearing on the respondent's motion to suppress physical evidence seized from his person.

The affirmation of respondent's attorney in support of the motion stated the following:

14. Respondent asserts that any physical evidence allegedly taken from him was taken in violation of the Fourth, Fifth and Fourteenth Admendments (sic) of the United States Constitution, Article 1 § 6 and 12 at (sic) the New York State Constitution, Family Court Act § 305.2, and applicable case law.

15. Based on information and belief, and conversations with my client, on the date and time in question, the Respondent was merely standing on the sidewalk.

He was doing nothing which would have given rise to any reasonable suspicion of criminal or illegal activity.

16. Despite the above, the Respondent was approached by police officers, stopped, arrested and subsequently unlawfully searched.

17. It is respectfully submitted that no cause existed for the police to stop the respondent or thereafter search him.

18. All physical evidence in this matter is a direct product of the unlawful stop, arrest and search and must be suppressed, or in the alternative a pretrial Mapp/ Dunaway hearing must be held.

In response to this affirmation the Presentment Agency did not allege facts controverting those alleged by the respondent. Instead it attacked the affirmation as being conclusory. It stated as follows:

The Presentment Agency submits that the sworn allegations of fact do not support the ground alleged for the following reasons:

The Respondent, in his moving papers, states that he was "merely standing on the sidewalk" "on the date and time in question." The Presentment Agency concedes that within the entire time in which the Respondent was under observation on October 4, 1990, there must have been a point in time when he was standing. However, there are no sworn allegations of fact in his moving papers as to how the Respondent was standing, where on the "sidewalK" [sic] he was standing, with whom he was standing, nor what his purpose was in standing. The Presentment Agency submits that the statement is boilerplate, totally conclusory and fails to contain adequate sworn allegations of fact. In this way, the Court should summarily deny the motion.

The allegations contained in the respondent's affirmation are similar to those contained in similar motions in other causes and are sufficient to require a hearing (see, Matter of Tyrell B., 177 A.D.2d 375, 376, 576 N.Y.S.2d 127, 128 [1991] ["Respondent was not engaged in any observable criminal activity at the time police seized and searched respondent. He was merely standing on a public through fare [sic] when the police seized respondent."]; People v. Miller, 162 A.D.2d 248, 249, 556 N.Y.S.2d 607 [1990] [defendant "standing in a hallway" and not engaged in "overtly illegal conduct"], appeal dismissed, 76 N.Y.2d 895, 561 N.Y.S.2d 557, 562 N.E.2d 882 [1990]; People v. Huggins, 162 A.D.2d 129, 556 N.Y.S.2d 75 [1990] [defendant on 95th Street, having committed no crime and not engaged in suspicious behavior].

The allegations were sufficient to warrant a hearing. This is particularly true where the People offered no affirmation or affidavit disputing the facts alleged. Moreover, if the supporting deposition of the arresting officer is used as an opposition to the motion, the contradictory factual assertions by respondent necessitate a hearing (see, CPL 710.60[4].

Accordingly, we remand for a hearing.

All concur except KUPFERMAN, J., who dissents in a memorandum as follows:

KUPFERMAN, Justice (dissenting).

I would affirm.

The petition charged that the thirteen year-old appellant had committed acts which, if committed by an adult, would constitute the crimes of criminal possession of a controlled substance in the third degree...