People v. Jones

• Decision Date: 29 March 2001
• Docket Number: No. 27,27
• Parties: (Ct.App. 2001) The People of the State of New York, Respondent, v. John Jones, Appellant. 2
• Court: New York Court of Appeals Court of Appeals

Page 761

723 N.Y.S.2d 761 (Ct.App. 2001)

The People of the State of New York, Respondent, v. John Jones, Appellant.

2 No. 27

NEW YORK COURT OF APPEALS

March 29, 2001

[Copyrighted Material Omitted]

Reed Smith, New York City, and M. Sue Wycoff for appellant.

Richard A. Brown District Attorney of Qeeun County, Kew Gardens (James A. Dolan, and John M. Castellano of counsel), for respondent.

OPINION OF THE COURT

LEVINE, J.:

Defendant was charged with Criminal Sale of a Controlled Substance in the Third Degree (Penal Law § 220.39[1]) based upon allegations that, on November 7, 1996, he sold cocaine to an undercover police officer.

Prior to trial, defendant moved to suppress the physical evidence resulting from his arrest, including allegedly prerecorded "buy money" seized from his person. In support of the motion, defense counsel affirmed, on information and belief, that defendant was not engaged in any criminal activity at the time of the arrest that would establish independent grounds to stop him. In addition, defense counsel averred that, based on a review of the felony complaint and other documents, defendant appeared to have been arrested pursuant to a "buy and bust" operation, and noted that such operations usually involve a radio call from an undercover purchasing officer to a back-up team that includes a description of the alleged seller. That description is then used by the back-up team to identify and detain the seller. Defendant's motion to suppress essentially challenged the sufficiency of the description given by the undercover officer to the back-up team.

At the outset, the affidavit submitted by defense counsel set forth that any description relied upon in order to identify and arrest defendant was not disclosed to him. Nonetheless, the affidavit alluded to two alleged deficiencies with respect to the description and contended that the police thus lacked probable cause to arrest defendant. Specifically, the affidavit pointed out that defendant may not have matched the description radioed by the undercover to the arresting officer, but was arrested and searched nonetheless in violation of People v Dodt (61 N.Y.2d 408, 415). The affidavit also alleged that the description could have been so generalized as to cover not only defendant, but also others present at the time and scene of the arrest, citing People v Skrine (125 A.D.2d 507, 508).

The People answered and opposed the motion on the ground that defendant did not deny engaging in any criminal activity at any time prior to his arrest, noting that defendant focused instead on his appearance and actions at the time immediately preceding his arrest. The People asserted that a member of the back-up team, Officer Salerno, had received information concerning the drug transaction, accompanied by a description of the seller. The People further averred that Officer Salerno had probable cause to make the arrest based upon his observations of defendant -- specifically that he matched the description communicated by the undercover.¹ No such description, however, was set forth in the People's opposing papers.

The suppression court summarily denied defendant's motion on the ground that "defendant ha[d] failed to controvert specifically the acts which the People allege he committed * * * and which, if true, would constitute probable cause for his arrest." Defendant was thereafter convicted, after a jury trial, and sentenced as a predicate felon to an indeterminate term of eight to sixteen years.

The Appellate Division affirmed. On appeal, the Appellate Division upheld the summary denial of the motion to suppress on the ground that defendant's "allegations were factually insufficient to support his claim that the police lacked probable cause to arrest him" (270 A.D.2d 500, 501). A Judge of this Court granted leave to appeal.

DISCUSSION

CPL 710.60(1) requires that a suppression motion be in writing, state the legal ground upon which it is based and that it must "contain sworn allegations of fact, whether of the defendant or of another person or persons, supporting such grounds." The required factual allegations may be based upon information and belief, provided that the source of information and grounds of such belief are set forth in the motion (CPL 710.60[1]). The court must then decide, based upon the motion papers submitted by both parties, whether to summarily grant or deny the motion, or conduct a suppression hearing (see, People v Mendoza, 82 N.Y.2d 415). The court may, with two exceptions not applicable here,² summarily deny a motion to suppress if "[t]he sworn allegations of fact do not as a matter of law support the ground alleged" (CPL 710.60[3][b]; see, Preiser, Practice Commentaries, CPL 710.60, at 278 [noting the necessity in most cases to include factual allegations which, as a matter of law, support the ground alleged in order to "cross the threshold for a hearing"]).

In People v Mendoza and its companion cases (82 N.Y.2d 415, supra), this Court comprehensively addressed the requirements of CPL 710.60 regarding the sufficiency of factual allegations in a suppression motion to entitle a defendant to a hearing. There the Court held:

"the sufficiency of defendant's factual allegations should be evaluated by (1) the face of the pleadings, (2) assessed in conjunction with the context of the motion, and (3) defendant's access to information" (id., at 426).

Two of the cases decided with Mendoza were buy and bust cases (People v Martinez; Matter of George J.) and, accordingly, are especially instructive in resolving the issue presented here. In those cases, the only facts alleged on the suppression motions were that each defendant was not engaged in any criminal conduct at the time of the arrest. Otherwise, each defendant merely claimed in a conclusory fashion either that his constitutional rights had been violated or that his arrest was without probable cause. We first noted that conclusory allegations of a general constitutional violation or lack of probable cause are of no avail in meeting the statutory requirements for entitlement to a hearing (see, id., at 431 [conclusory allegations that defendant "was stopped without reasonable suspicion or probable cause" were insufficient]).

Moreover, in the context of a buy and bust arrest, factual allegations of innocent conduct at the time of the arrest do not mandate a hearing. In the typical buy and bust situation, probable cause is "generated by the drug transaction;" therefore, "an allegation that defendant was merely standing on the street at the time of arrest does not frame a factual issue for the court's determination" (id., at 428; see, id., at 431 ["Probable cause was generated upon defendant's sale of the drugs to the undercover, and thus defendant's conduct 'at the time of the stop' * * * is essentially irrelevant"]). Thus, as the movants' only factual allegations in Martinez and George J. related exclusively to their innocent conduct at the time of the arrests, this Court affirmed the motion courts' summary denials of their respective suppression motions.

People v Mendoza is also instructive on whether a denial of participation in the sale in a buy and bust situation is essential to establish entitlement to a hearing. Thus, after holding that, in that particular context, a claim of innocent conduct at the time of the arrest is unavailing, the Court went on to state, as a general proposition, that a defendant is required to raise a factual challenge to the legality of the arrest and seizure of evidence in either of two ways. A defendant must either "deny participating in the transaction or suggest some other grounds for suppression" (id., at 429 [emphasis supplied]). In Martinez, the Court explicitly recognized that, even with a concession of involvement in criminal activity on the motion, a defendant could still raise a sufficient factual basis to challenge the legality of an arrest to merit a hearing. The Court clearly contemplated instances where a defendant could challenge an arrest and subsequent search independent from a general denial of criminal culpability:

"Although defendant's participation in the sale -- even if expressly admitted -- would not foreclose all possible challenges to the subsequent search and arrest, defendant did not identify any issue upon which a hearing was sought. Instead, defendant claimed in the most general terms that his constitutional rights were violated" (id., at 431 [emphasis supplied]).

In this case, unlike in People v Martinez and Matter of George J., in addition to averring that his activity at the time of arrest was noncriminal -- which, under the holding of those cases, would be insufficient to raise an issue of material fact -- defendant alluded in his suppression motion to facts pertinent to whether probable cause otherwise existed for his arrest. Specifically, he asserted in his motion that his arrest was arguably without probable cause...