Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered October 26, 2007, convicting defendant, upon his plea of guilty, of attempted burglary in the third degree, and sentencing him, as a second felony offender, to a term of 11/2 to 3 years, unanimously affirmed.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Tom, J.P., Gonzalez, Nardelli, Moskowitz, Renwick, JJ.
Defendant's motion to suppress merchandise recovered from his possession by a store security guard was properly denied without a hearing because he failed to allege facts raising an issue as to state action (see People v Parris, 220 AD2d 254 , lv denied 87 NY2d 976 ). Unlike the situation in People v Mendoza (82 NY2d 415, 433-434 ) and People v Green (33 AD3d 452 ), defendant had ample access to information about the guard, including his identity and employment status, which led defendant to subpoena the records of the store's security provider. Accordingly, defendant was required to do more than baldly assert that the security guard was licensed to exercise police powers or was acting as an agent of law enforcement in order to obtain a hearing. Defendant's allegation that the store worked with the District Attorney's office to institute an anti-shoplifting program did not raise a factual issue as to state action (see People v Duerr, 251 AD2d 161 , lv denied 92 NY2d 949 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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