People v. Janto

• Decision Date: 13 January 1972
• Citation: 38 A.D.2d 777,328 N.Y.S.2d 115
• Parties: PEOPLE of the State of New York, Respondent, v. Charles T. JANTO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 115

328 N.Y.S.2d 115

38 A.D.2d 777

PEOPLE of the State of New York, Respondent, v. Charles T. JANTO, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Jan. 13, 1972.

E. George Perdix, Canandaigua, for appellant.

Willard C. Best (Carlton K. Brownell), Geneva, for respondent.

Before DEL VECCHIO, J.P., and MARSH, MOULE, CARDAMONE and HENRY, JJ.

MEMORANDUM:

On this appeal from a judgment convicting him, on his plea of guilty, of attempted rape in satisfaction of an indictment charging him with rape and sodomy, defendant seeks reversal of the judgment on the ground that he was improperly denied a suppression hearing. The denial of his motion may be reviewed on this appeal notwithstanding the fact that the judgment is predicated on his plea of guilty (Code of Criminal Procedure § 813-c). The motion to suppress was based solely on the hearsay affidavit of his attorney. In People v. Leonard, 33 A.D.2d 1010, 308 N.Y.S.2d 77, affd. 27 N.Y.2d 959, 318 N.Y.S.2d 496, 267 N.E.2d 272, the court in affirming a conviction in a similar situation said: 'The motion to suppress was based solely on the testimony of the arresting police officer . . . and the hearsay affidavit of defendant's attorney. The latter had no evidentiary value. (People v. De Simone, 56 Misc.2d 289, 288 N.Y.S.2d 324, affd. People v. De Simone, 59 Misc.2d 562, 299 N.Y.S.2d 488). The uncontradicted testimony of the police officer presented no issue of fact requiring a hearing.'

After the motion had been denied the Sheriff testified in a Huntley hearing that defendant admitted having had sexual intercourse with the victim. He told the Sheriff that a gun was involved and said, 'if you want me to I will go home and get it for you'. Appellant's argument, that the trial court upon hearing such testimony should have reconsidered the motion for a suppression hearing, is without merit. As in People v. Leonard, Supra, this testimony of the police officer presented no issue of fact which would justify a hearing. Furthermore, defendant, having made no motion for reconsideration of the suppression motion, cannot raise the point on this appeal. Other points raised by appellant are also without merit and require no discussion.

All concur except CARDAMONE, J., who dissents and votes to reverse the judgment and remit the matter for further proceedings.

MEMORANDUM:

In my view it was error for the trial court to take the defendant's plea without first granting him a suppression hearing. The majority bases its affirmance on the fact that the motion made requesting it was not supported by an affidavit from the defendant, but merely by an affidavit of his attorney. Such a narrow construction does not seem warranted by the applicable language of section 813-c of the Code of Criminal Procedure, which, in setting forth the requirements for a motion to suppress, does not require an affidavit of defendant. It should be noted that the Criminal Procedure Law (eff. Sept. 1, 1971) now requires that on a motion to suppress the motion papers state the grounds of the motion upon 'sworn allegations of fact, whether of the defendant or of another person . . . supporting such grounds' or upon information and belief provided the sources of such belief are stated (CPL § 710.60).

It should be further noted that the Code of Criminal...