People v. Otero

151 A.D.2d 236, 543 N.Y.S.2d 896, 1989 N.Y. App. Div. LEXIS 7352

Opinion

Appeal from a judgment of the Supreme Court, New York County (Jay Gold, J.), rendered May 28, 1987, convicting defendant, upon a plea of guilty, of criminal possession of a controlled substance in the second degree (Penal Law § 220.18), and sentencing him to an indeterminate term of imprisonment of from three years to life, is held in abeyance, the order denying defendant’s motions to controvert the warrant and suppress tangible evidence is vacated, on the law, and the matter remanded for a hearing on said motions.

In light of the sworn allegations of fact contained in defendant’s motion papers, which dispute the averments in the warrant application and are not conceded by the People, it was error for the trial court to have summarily denied the motions. (CPL 710.60 [4]; People v Banks, 100 AD2d 780; cf., People v Reynolds, 71 NY2d 552, 558.) Concur — Murphy, P. J., Sullivan, Carro, Kassal and Smith, JJ.