People v. Carrion

68 A.D.2d 827, 414 N.Y.S.2d 168, 1979 N.Y. App. Div. LEXIS 11021

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 13, 1979
• Status: Published

Opinion

Appeal from judgment of the Supreme Court, New York County, rendered June 7, 1977, convicting the defendant Yolanda Carrion, after a plea of guilty, of the crime of attempt to commit the crime of robbery in the second degree held in abeyance and the matter is remanded for hearing on a motion to suppress identification testimony based on alleged improperly suggestive lineup procedures. Defense counsel, in a written motion, applied for suppression of all identification evidence based upon two grounds, viz., that the arrest was made on private premises without probable cause and without an arrest warrant, and that the lineup resulting in defendant’s identification was improper. The People filed no papers in opposition to this motion. When defense counsel argued orally before the court, the court denied the motion summarily without a hearing, despite the lack of opposition by the District Attorney. The court in its denial addressed the first ground alleged by the defendant in her papers but did not pass upon the issue of the propriety of the lineup procedures. The allegations in the papers offered a legal basis for the motion and contained allegations of fact to support the ground alleged. No opposition papers were submitted by the District Attorney. Summary denial of the motion under these circumstances was improper (CPL 710.60, subd 3). We have accordingly remanded this matter for a hearing on the motion to suppress identification testimony on the basis of alleged impropriety in the lineup procedures. The determination of this appeal is held in abeyance pending the result of that hearing. Concur—Sandler, J. P., Lane, Markewich, Lupiano and Bloom, JJ.