- December 14, 2018
E. Sabel, New York, NY (Harold V. Ferguson, Jr., of counsel),
Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove,
Keith Dolan, and Daniel Berman of counsel), for respondent.
WILLIAM F. MASTRO, J.P. LEONARD B. AUSTIN SHERI S. ROMAN
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
by the defendant from a judgment of the Supreme Court, Kings
County (Raymond Guzman, J.), rendered June 24, 2016,
convicting him of criminal possession of a weapon in the
second degree, upon a jury verdict, and imposing sentence.
The appeal brings up for review the denial, without a
hearing, of that branch of the defendant's omnibus motion
which was to suppress physical evidence.
that the judgment is affirmed.
10, 2015, at approximately 2:00 a.m., after calling 911, the
complainant arrived at a New York City Police Department
station to report that the defendant had used a liquor bottle
to break her car's rear windshield and driver's side
window. The complainant identified the defendant by name and
gave the police a description of the clothes he was wearing.
four police officers, one in uniform and three in
plainclothes with their badges displayed, traveled with the
complainant in an unmarked police vehicle to the
defendant's home. When they drove past the
defendant's home, the complainant identified the
defendant, who was standing outside under a street light. The
police stopped their vehicle and, upon exiting, they observed
the defendant remove a gun from his waistband and place it
behind a nearby tree. The defendant was arrested and charged
with attempted assault in the second degree, attempted
assault in the third degree, criminal possession of a weapon
in the fourth degree (two counts), menacing in the second
degree, criminal mischief in the fourth degree (two counts),
criminal possession of a weapon in the second degree (two
counts), criminal possession of a firearm, and criminal
possession of a weapon in the third degree.
order dated September 1, 2015, the Supreme Court denied the
defendant's motion to dismiss the indictment pursuant to
CPL 190.50 on the ground that he was deprived of his right to
testify before the grand jury. Thereafter, in an order dated
April 11, 2016, the court denied, without a hearing, that
branch of the defendant's omnibus motion which was to
suppress the gun on the basis that the defendant failed to
assert a possessory interest in the gun or allege a factual
scenario which, if uncontradicted, would require suppression
of the gun or entitle him to a hearing. After a jury trial,
the defendant was convicted of criminal possession of a
weapon in the second degree.
defendant's contention that the Supreme Court improperly
denied his motion to dismiss the indictment on the ground
that he was not given notice of his scheduled time to testify
before the grand jury is without merit. In opposition to the
defendant's motion, the People demonstrated that the
defendant was provided with notice, via telephone and email
to his counsel, of the grand jury proceeding and the date and
time during which he was scheduled to testify (see
CPL 190.50[a]; People v Williams, 139 A.D.3d 766,
766; People v Quinones, 280 A.D.2d 559, 560).
agree with the Supreme Court's determination to deny,
without a hearing, that branch of the defendant's omnibus
motion which was to suppress the gun. In his motion papers,
the defendant argued that the gun should be suppressed as the
product of an unlawful arrest because the arresting officers
approached the defendant without first observing him commit a
crime or without probable cause to believe that he had
committed one. A court may deny a motion to suppress evidence
without conducting a hearing if the "defendant does not
allege a proper legal basis for suppression, or (with two
exceptions) if the 'sworn allegations of fact do not as a
matter of law support the ground alleged'"
(People v Mendoza, 82 N.Y.2d 415, 421, quoting CPL
710.60[b]). "[T]he sufficiency of defendant's
factual allegations should be . . . (1) [evaluated by] the
face of the pleadings, (2) assessed in conjunction with the
context of the motion, and (3) [evaluated by] defendant's
access [of] information" (People v Mendoza, 82
N.Y.2d at 426; see People v Garay, 25 N.Y.3d 62, 72;
People v Guzman, 153 A.D.3d 1273, 1276).
defendant's unsworn allegations, when considered in the
context of the information provided by the People, failed to
raise a factual dispute requiring a hearing (see People v
Holloway, 45 A.D.3d 477, 477). The defendant's
motion papers did not contain sworn allegations of fact.
Moreover, the information provided to the defendant, which
included the grand jury testimony, demonstrated that the
police approached the defendant based on the statements
provided to them by the complainant. Consequently, the
approach by the police was lawful and the defendant's
claim of innocent conduct at the time of their approach was
insufficient to warrant entitlement to a hearing (see
People v Garay, 25 N.Y.3d at 72; People v
France, 12 N.Y.3d 790, 791; People v Guzman,
153 A.D.3d at 1276).
sentence imposed was not excessive (see People v