People v. Peart

198 A.D.2d 528, 605 N.Y.S.2d 924

Opinion

—Appeals by the defendant (1) from a judgment of the Supreme Court, Queens County (Eng, J.), rendered November 8, 1991, convicting him of robbery in the second degree and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence, and (2) by permission, from an order of the same court, dated September 10, 1992, which denied his motion pursuant to CPL 440.10 to set aside the judgment. The appeal from the judgment of conviction brings up for review (1) the denial, after a hearing (Hanophy, J.), of that branch of the defendant’s omnibus motion which was to suppress identification testimony, and (2) the denial (Eng, J.), without a hearing, of that branch of the defendant’s omnibus motion which was to suppress physical evidence.

Ordered that the matter is remitted to the Supreme Court, Queens County, to hear and report on that branch of the defendant’s omnibus motion which was to suppress physical evidence, and the appeals are held in abeyance in the interim. The Supreme Court, Queens County, is to file the report with all convenient speed.

We find that the court erred in denying, as untimely, the defendant’s renewed application for a Mapp hearing. The original application for a Mapp hearing, was denied with leave to renew, on the ground that the defendant had not made proper allegations of fact. We find that under the circumstances of this case, the defendant’s renewed application, made 12 days after a Wade hearing, at which factual issues concerning the legality of the search of the defendant were elicited, was timely. Bracken, J. P., Miller, Lawrence and Pizzuto, JJ., concur.