People v. Muhammed

290 A.D.2d 248, 736 N.Y.S.2d 19, 2002 N.Y. App. Div. LEXIS 233

Opinion

Appeal from judgment, Supreme Court, New York County (Carol Berkman, J., on summary denial of Mapp motion; Bonnie Wittner, J., at jury trial and sentence), rendered December 13, 1999, convicting defendant of criminal possession of a controlled substance in the fifth degree, and sentencing him, as a second felony offender, to a term of 2V2 to 5 years, held in abeyance and the matter remanded for a hearing on defendant’s motion to suppress evidence.

Given the information available to defendant, his factual averments were sufficient to entitle him to a hearing. The People had disclosed simply that defendant was arrested minutes after being observed selling drugs to a separately charged individual. In his moving papers, defendant denied selling drugs immediately before his arrest or at any time that day, and stated that he had not committed any observable crime, that there were no drugs or other contraband in plain view, and that he was not engaged in any suspicious behavior. Accordingly, defendant raised a factual issue warranting a hearing (see, People v Hightower, 85 NY2d 988, 989-990; People v Lopez, 263 AD2d 434; People v Marquez, 246 AD2d 330). Concur — Williams, J.P., Tom, Mazzarelli, Rosenberger and Ellerin, JJ.