People v. Miller

162 A.D.2d 248, 556 N.Y.S.2d 607, 1990 N.Y. App. Div. LEXIS 7186

Opinion

Appeal from judgment, Supreme Court, New York County (Harold Rothwax, J.), rendered March 23, 1988, which convicted defendant, upon his pleas of guilty, of criminal possession of stolen property in the fourth degree (indictment No. 9438/87) and robbery in the second degree (indictment No. 727/88) and sentenced him as a predicate felony offender to indeterminate terms of imprisonment of from IVz to 3 years on indictment No. 9438/87 and 3 to 6 years on indictment No. 727/88, to be served consecutively, is held in abeyance, the order denying defendant’s motion to suppress physical evidence reversed, on the law, and the matter remanded for a suppression hearing. Motion by defendant to enlarge the judgment roll is denied.

As part of an omnibus motion, defendant moved to suppress physical evidence, i.e., a stolen credit card, pursuant to CPL 710.60. The motion was predicated on the affirmation of defense counsel. Counsel stated that, upon information and belief based upon conversations with the defendant, defendant was seized while standing in a hallway at 230 East 102nd Street, speaking to another individual; that defendant was engaged in no overtly illegal conduct, but was nevertheless detained, searched and arrested. The People submitted an affirmation in response alleging that the arresting officer saw defendant drop the evidence to the floor. The Judge summarily denied defendant’s motion, finding that defendant lacked standing upon the motion. While defense counsel’s affirmation could have been more specific, we find it was adequate to place in issue the lawfulness of the police conduct attendant upon the arrest of defendant and seizure of the credit card. We, thus, hold this appeal in abeyance and remand the matter for a suppression hearing. Concur—Sullivan, J. P., Milonas, Rosenberger, Asch and Kassal, JJ.