People v. Jennings
| Decision Date | 02 October 2013 |
| Citation | 110 A.D.3d 738,2013 N.Y. Slip Op. 06384,972 N.Y.S.2d 104 |
| Parties | The PEOPLE, etc., respondent, v. Clyde JENNINGS, appellant. |
| Court | New York Supreme Court — Appellate Division |
110 A.D.3d 738
972 N.Y.S.2d 104
2013 N.Y. Slip Op. 06384
The PEOPLE, etc., respondent,
v.
Clyde JENNINGS, appellant.
Supreme Court, Appellate Division, Second Department, New York.
Oct. 2, 2013.
[972 N.Y.S.2d 105]
Robert C. Mitchell, Riverhead, N.Y. (Adrienne Wallace of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Guy Arcidiacono of counsel), for respondent.
PETER B. SKELOS, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Hinrichs, J.), rendered December 10, 2009, convicting him of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and resisting arrest, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, without a hearing (Efman, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.
ORDERED that the matter is remitted to the County Court, Suffolk County, for a hearing and a new determination thereafter of that branch of the defendant's omnibus motion which was to suppress physical evidence, and the appeal is held in abeyance in the interim. The County Court, Suffolk County, shall file its report with all convenient speed.
The defendant was arrested and charged with, among other things, criminal possession of a weapon in the second and third degrees after police officers approached a vehicle which he had just exited and, shortly thereafter, recovered a gun which he allegedly threw to the ground in the vicinity of the vehicle. The County Court denied that branch of the defendant's omnibus motion which was to suppress the gun without conducting a hearing.
A motion to suppress evidence must state the grounds of the motion and contain sworn allegations of fact supporting such grounds ( seeCPL 710.60[1]; Matter of Shaundale W., 82 A.D.3d 1254, 1255, 919 N.Y.S.2d 364;People v. Wright, 54 A.D.3d 695, 696, 863 N.Y.S.2d 253). “It is fundamental that a motion may be decided without a hearing unless the papers submitted raise a factual dispute on a material point which must be resolved before the court can decide the legal issue” ( People v. Montero, 44 A.D.3d 796, 796, 843 N.Y.S.2d 394 [internal quotation marks omitted];
seeCPL 710.60[3][b]; People v. Wright, 54 A.D.3d at 696, 863 N.Y.S.2d 253). In testing the sufficiency of a defendant's factual allegations, a court should consider ...
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...was required to resolve these factual disputes (see generally id. at 433–434, 604 N.Y.S.2d 922, 624 N.E.2d 1017 ; People v. Jennings, 110 A.D.3d 738, 739, 972 N.Y.S.2d 104 ). Further, the Supreme Court improperly, in the alternative, denied the defendant's separate suppression motion as unt......
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...which was to suppress physical evidence, and the appeal was held in abeyance in the interim (see 12 N.Y.S.3d 276People v. Jennings, 110 A.D.3d 738, 972 N.Y.S.2d 104 ). The County Court, Suffolk County (Efman, J.), has now filed its report.ORDERED that the judgment is affirmed.The defendant ......
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