People v. Jones

136 A.D.2d 510, 523 N.Y.S.2d 977, 1988 N.Y. App. Div. LEXIS 527

Opinion

—Appeals from judgments, Supreme Court, New York County (Rothwax, J., at denial of motion to suppress identification testimony; Uviller, J., at trial and sentence), rendered July 31, 1985, convicting Hubert Brown, after a jury trial, of four counts of robbery in the second degree and two counts of attempted robbery in the second degree and sentencing him to four indeterminate prison terms of eight years to life and two indeterminate prison terms of six years to life, to run concurrently and, by the same court, rendered August 1, 1985, which convicted Cornelius Jones of the same crimes, and sentenced him to four indeterminate terms of imprisonment of 5 Vi to 11 years and two indeterminate terms of imprisonment of 5 Vi to 11 years and two indeterminate prison terms of 3 to 6 years, held in abeyance, and the matter remanded to Supreme Court for a hearing on defendants’ motion to suppress identification evidence.

The People appropriately concede that the motion papers which were before the court which denied, without a hearing, the defendants’ motion to suppress identification evidence "created a factual conflict requiring a hearing”. They further appropriately concede that this court cannot review the determination of the suppression motions by considering what transpired at trial. (People v Gonzalez, 55 NY2d 720, 722 [1981], cert denied 456 US 1010 [1982].)

We note further, that the instant case is one of several which, arising from rulings of the same motion Judge, have required us to hold appeals in abeyance and remand matters to Supreme Court for hearings on motions which were inappropriately denied, without hearing. Concur—Asch, J. P., Rosenberger, Ellerin and Smith, JJ.