People v. Jose

• Decision Date: 08 May 1997
• Citation: 239 A.D.2d 172,657 N.Y.S.2d 631
• Parties: The PEOPLE of the State of New York, Respondent, v. Carlos JOSE, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 631

657 N.Y.S.2d 631

239 A.D.2d 172

The PEOPLE of the State of New York, Respondent, v. Carlos JOSE, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

May 8, 1997.

Deirdre Waldron Power, for Respondent.

Joseph C. Heinzmann, Jr., for Defendant-Appellant.

Before SULLIVAN, J.P., and MILONAS, ROSENBERGER and RUBIN, JJ.

MEMORANDUM DECISION.

Appeal from judgment, Supreme Court, New York County (Herbert Adlerberg, J., on suppression motion; Harold Beeler, J., at jury trial and sentence), rendered May 12, 1995, convicting defendant of criminal possession of a controlled substance in the first and third degrees, criminal possession of a weapon in the third degree, and two counts of criminally using drug paraphernalia in the second degree, and sentencing him to concurrent prison terms of 15 years to life, 1 to 3 years, 1 to 3 years, 1 year and 1 year, respectively, held in abeyance, and the matter is remitted for a Mapp hearing.

The defendant's motion papers alleged that the police entered the subject apartment, threw him to the floor, searched him, searched the apartment, seized contraband from the apartment and seized a key to the apartment from the appellant's person, without a warrant, based upon an anonymous tip that two individuals suspected of the murder of a police officer a few days earlier could be found at that location. It is conceded that the people found in the apartment were not responsible for the murder under investigation. The People's answering papers challenged both the defendant's factual showing pursuant to CPL 710.60 and his standing to contest the search of the apartment.

The court erred in summarily denying the defendant's motion without holding a Mapp hearing (see, People v. Mendoza, 82 N.Y.2d 415, 604 N.Y.S.2d 922, 624 N.E.2d 1017). Although a Mapp hearing was warranted as to all of the physical evidence seized, it is apparent that even under the theory that the defendant did not have standing to contest the entry and subsequent search of the apartment, the failure to conduct a hearing as to the propriety of the physical search of the defendant's person was alone highly prejudicial. The defendant's motion papers were facially sufficient, and the key taken from his pocket was a crucial piece of evidence inculpating him at trial.

Further, the defendant's motion papers raised an issue as to whether an anonymous tip about the murder suspects' presence in the apartment days after commission of the...