People v. Brown

114 A.D.2d 417, 494 N.Y.S.2d 333, 1985 N.Y. App. Div. LEXIS 53100

Opinion

—Motion by defendant in the above-captioned matter for amendment of so much of a decision and order of this court, both dated August 5, 1985, as ordered a new trial (People v Brown, 112 AD2d 945).

Motion granted, by deleting from the decretal paragraph of the decision the words "and a new trial ordered”, and substituting therefor the following: "indictment dismissed, and case remitted to the Supreme Court, Kings County, for the purpose of entering an order in its discretion pursuant to CPL 160.50”. Order amended accordingly.

Defendant was convicted of criminal possession of a weapon in the third degree after a nonjury trial. We reversed the conviction and ordered a new trial for the reason that that branch of defendant’s pretrial motion which sought suppression of a gun, bullets and clip, as well as the defendant’s on-the-scene admission that it was his gun, should have been granted. Defendant now moves for an amendment of our decision and order to provide for a dismissal of the indictment, arguing that no evidence remains on which to prosecute defendant. The People "take no position on defendant’s motion”, which lends support to defendant’s contention that there is no basis for a new trial. Accordingly, it is appropriate to dismiss the indictment. Thompson, J. P., Bracken, Weinstein and Niehoff, JJ., concur.