In re Anthony S.

Appellate Division of the Supreme Court of New York

In re Anthony S.

162 A.D.2d 228, 1990 N.Y. App. Div. LEXIS 7226

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 14, 1990

StatusPublished

Cited by1 cases

This text of 162 A.D.2d 228 (In re Anthony S.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Anthony S., 162 A.D.2d 228, 1990 N.Y. App. Div. LEXIS 7226 (N.Y. Ct. App. 1990).

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Opinion

Order of disposition, Family Court, New York County (Kathryn McDonald, J.), entered August 1, 1985, finding that appellant committed acts which, if committed by an adult, would constitute the crimes of criminal possession of a weapon in the fourth degree, attempted escape in the second degree and obstructing governmental administration, and which granted appellant a conditional discharge on condition that he be placed under the jurisdiction of New Jersey courts, unanimously modified, on the law, to the extent of reversing the order summarily denying the motion to suppress and remanding for further proceedings, without costs.

On appeal, respondent argues, inter alia, that the court at the fact-finding hearing improperly exercised its discretion in summarily denying his oral motion to suppress the gun seized. We agree. Although a motion to suppress is required to be made prior to the fact finding (see, Family Ct Act § 330.2 [2]), if good cause is shown why the motion was not made prior to the commencement of the fact finding, a court may entertain the motion (see, Family Ct Act § 330.2 [2]; § 332.2 [3]).

Because the respondent was detained, and the petition’s highest count was less than a C felony, a fact-finding hearing was required to be commenced no more than three days after the conclusion of the initial appearance (see, Family Ct Act § 340.1). At the fact finding, respondent’s counsel orally moved to suppress the gun seized, explaining that her delinquency in bringing the motion was due to her appointment as counsel only four days prior to the fact finding and because of her lack of opportunity to communicate with the detained respondent. Under these circumstances, we find that it was an abuse of discretion not to entertain respondent’s motion. We also note that a compelling argument for suppression is made by counsel which, if proved, would warrant suppression and dismissal of the petition. Concur—Murphy, P. J., Ross, Milonas, Kassal and Wallach, JJ. [See, 162 AD2d 325.]

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Order of disposition, Family Court, New York County (Kathryn McDonald, J.), entered August 1, 1985, finding that appellant committed acts which, if committed by an adult, would constitute the crimes of criminal possession of a weapon in the fourth degree, attempted escape in the second degree and obstructing governmental administration, and which granted appellant a conditional discharge on condition that he be placed under the jurisdiction of New Jersey courts, unanimously modified, on the law, to the extent of reversing the order summarily denying the motion to suppress and remanding for further proceedings, without costs.

On appeal, respondent argues, inter alia, that the court at the fact-finding hearing improperly exercised its discretion in summarily denying his oral motion to suppress the gun seized. We agree. Although a motion to suppress is required to be made prior to the fact finding (see, Family Ct Act § 330.2 [2]), if good cause is shown why the motion was not made prior to the commencement of the fact finding, a court may entertain the motion (see, Family Ct Act § 330.2 [2]; § 332.2 [3]).

Because the respondent was detained, and the petition’s highest count was less than a C felony, a fact-finding hearing was required to be commenced no more than three days after the conclusion of the initial appearance (see, Family Ct Act § 340.1). At the fact finding, respondent’s counsel orally moved to suppress the gun seized, explaining that her delinquency in bringing the motion was due to her appointment as counsel only four days prior to the fact finding and because of her lack of opportunity to communicate with the detained respondent. Under these circumstances, we find that it was an abuse of discretion not to entertain respondent’s motion. We also note that a compelling argument for suppression is made by counsel which, if proved, would warrant suppression and dismissal of the petition. Concur—Murphy, P. J., Ross, Milonas, Kassal and Wallach, JJ. [See, 162 AD2d 325.]

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Bluebook (online)

162 A.D.2d 228, 1990 N.Y. App. Div. LEXIS 7226, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-anthony-s-nyappdiv-1990.

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