People v. Burton

120 A.D.2d 967, 502 N.Y.S.2d 896, 1986 N.Y. App. Div. LEXIS 57069

Opinion

— Judgment unanimously affirmed. Memorandum: Defendant was convicted of criminal possession of a weapon in the second degree and reckless endangerment in the first degree. He appeals from denial of his motion to suppress a gun recovered from the house of his girlfriend when police responded to a report of a shooting at that address. The motion was denied when defense counsel sought discontinuance of the suppression hearing and conceded that defendant lacked standing to contest the search after defendant admitted in open court that he did not live at the house.

It was not error for the court to accept defense counsel’s factual concession and grant his request to discontinue the hearing (see, People v Rivers, 115 AD2d 570). Whether defendant was deprived of effective assistance of counsel when his lawyer conceded the issue of standing cannot be ascertained on this record. Defendant’s proper remedy is to attempt to develop the record on this issue by bringing a CPL article 440 motion (see, People v Ramos, 63 NY2d 640, 643; People v Brown, 45 NY2d 852, 853-854). (Appeal from judgment of Supreme Court, Monroe County, Pine, J. — criminal possession of weapon, second degree, and reckless endangerment, first degree.) Present — Callahan, J. P., Doerr, Denman, Boomer and Green, JJ.