People v. Banks

100 A.D.2d 780, 474 N.Y.S.2d 64, 1984 N.Y. App. Div. LEXIS 17882

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 10, 1984
• Status: Published

Opinions

Appeal from a judgment, Supreme Court, New York County (Patrick McGinley, J.), rendered October 14,1981, convicting defendant on a plea of guilty to robbery in the third degree and sentencing him as a predicate felon to a term of 2 to 4 years, is held in abeyance and the matter remanded for a hearing on defendant’s motion to suppress physical evidence and identification testimony (CPL 710.60, subd 4). f As the People concede on the appeal, defendant was entitled to a Wade and Mapp hearing on the issue of suppression of the identification testimony and the physical evidence and, accordingly, the matter should be remanded, with the appeal held in abeyance pending the remand (see People v McNeil, 55 AD2d 573). Since the prosecution did not concede the truth of the factual allegations made by defendant in support of his omnibus motion to suppress (CPL 710.60, subd 2, par [a]), the statute required the court to hold a hearing and make findings of fact (CPL 710.60, subd 4). The prosecution’s version of the facts was in sharp disagreement with that alleged by defendant, a further basis for a hearing. We find the record insufficient to make our own findings of fact and conclusions of law. Concur — Sandler, Sullivan, Asch and Kassal, JJ.