People v. Alvarez

151 A.D.2d 684, 543 N.Y.S.2d 935, 1989 N.Y. App. Div. LEXIS 8176

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Douglass, J.), rendered September 15, 1986, convicting him of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree (two counts), and criminal possession of a controlled substance in the seventh degree (two counts), 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, as supplemented, which was to suppress physical evidence.

Ordered that the matter is remitted to the Supreme Court, Kings County, to hear and report on that branch of the defendant’s motion which was to suppress physical evidence and the appeal is held in abeyance in the interim. The Supreme Court, Kings County, is to file its report with all convenient speed.

The defendant made a sufficient prima facie factual showing within his motion papers to warrant a Mapp/Dunaway suppression hearing on the issues raised therein (see, CPL 710.60 [3], [4]; People v Mosley, 136 AD2d 500, 501; People v Soriano, 134 AD2d 186; People v Marshall, 122 AD2d 283, 284; People v Banks, 100 AD2d 780). Accordingly, the matter is remitted to the Supreme Court to hear and report on the motion, and the appeal will be held in abeyance in the interim (see, People v Marshall, supra). Mollen, P. J., Mangano, Kooper and Spatt, JJ., concur.