People v. De Vaughn

81 A.D.2d 924, 439 N.Y.S.2d 180, 1981 N.Y. App. Div. LEXIS 11648

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 26, 1981
• Status: Published

Opinion

— Appeal by defendant from three judgments of the County Court, Westchester County, all rendered June 6, 1979, convicting him of rape in the first degree, robbery in the first degree and criminal possession of stolen property in the first degree, upon his pleas of guilty, and imposing sentences. The appeal brings up for review the summary denial of the branch of defendant’s pretrial motion which sought to suppress potential identification evidence. Case remitted to the County Court, Westchester County, to hear and report on the branch of defendant’s motion which sought to suppress the potential identification evidence. The appeal will be held in abeyance during the interim. The County Court shall file its report with all convenient speed. It was error to deny in toto that portion of defendant’s omnibus pretrial motion which sought the suppression of certain potential identification evidence without first conducting a hearing. The moving papers, which might have been better, nevertheless sufficiently complied with the dictates of CPL 710.60 (subd 1) to raise a tenable issue (CPL 710.20, subd 5), and to render the summary denial of this aspect of the defendant’s motion, in purported compliance with CPL 710.60 (subd 3), improper (CPL 710.60, subd 4; see People v Werner, 55 AD2d 317; People v Williams, 46 AD2d 727; cf. People v Cobenais, 39 NY2d 968; People v Roberto H., 67 AD2d 549, 552; People v Digiosaffatte, 63 AD2d 703). Titone, J.P., Gibbons, Gulotta and Hargett, JJ., concur.