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, SANDRA L. SGROI, JJ.
DECISION & ORDER
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 (see CPL 710.60; Matter of Shaundale W., 82 A.D.3d 1254, 1255; People v Wright, 54 A.D.3d 695, 696). "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 [internal quotation marks omitted]; see CPL 710.60[b]; People v Wright, 54 A.D.3d at 696). In testing the sufficiency of a defendant's factual allegations, a court should consider "(1) the face of the pleadings, (2) assessed in conjunction with the context of the motion, and (3) defendant's access to information" (People v Mendoza, 82 N.Y.2d 415, 426).
Here, the allegations in the defendant's papers, when considered in the context of the information provided by the People, raised a factual dispute requiring a hearing (cf. People v Holloway, 45 A.D.3d 477, 477). Contrary to the People's contention, the defendant's motion papers contained the requisite sworn allegations of fact (see People v Mendoza, 82 N.Y.2d at 428; cf. People v Gadsden, 273 A.D.2d 701, 701). Moreover, the defendant was not required to demonstrate that he had a legitimate expectation of privacy in the area where the gun was found (see generally People v Ramirez-Portoreal, 88 N.Y.2d 99), since, under both the defendant's and the People's versions of events, the dispositive issue was whether the gun was recovered as a direct result of unlawful police action (see People v Boodle, 47 N.Y.2d 398, 402, cert denied 444 U.S. 969). In light of the foregoing, the County Court should not have denied suppression without conducting a hearing. Accordingly, we remit the matter to the County Court, Suffolk County, for a hearing and a new determination thereafter of that branch of the defendant's motion which was to suppress physical evidence.
We decide no other issues at this time.
SKELOS, J.P., BALKIN, AUSTIN and SGROI, JJ., ...