People v. Aponte

193 A.D.2d 529, 598 N.Y.S.2d 937, 1993 N.Y. App. Div. LEXIS 5274

Opinion

Appeal from a judgment, Supreme Court, Bronx County (David Stadtmauer, J., on summary denial of suppression motion and at trial and sentence), rendered March 24, 1991, convicting the defendant, after a jury trial, of criminal possession of a weapon in the third degree and sentencing him as a second felony offender to an indeterminate term of 2 Vi to 5 years in prison, unanimously held in abeyance and the matter remitted for a Mapp hearing.

The People’s answer to the defendant’s omnibus suppression motion set forth a sufficient factual basis for the police search of the defendant. However, contrary to the finding of the hearing court, defense counsel’s affirmation contained sufficient factual allegations to warrant a hearing (CPL 710.60; People v Huggins, 162 AD2d 129; People v Miller, 162 AD2d 248, lv dismissed 76 NY2d 895). Therefore, summary denial of defendant’s suppression motion was improper in this particular instance. Concur—Murphy, P. J., Rosenberger, Ross, Asch and Kassal, JJ.