People v. Riley

303 A.D.2d 1045, 756 N.Y.S.2d 694, 2003 N.Y. App. Div. LEXIS 2931

Opinion

—Appeal from a judgment of Monroe County Court (Geraci, Jr., J.), entered December 18, 2000, convicting defendant after a jury trial of grand larceny in the third degree.

It is hereby ordered that the case is held, the decision is reserved and the matter is remitted to Monroe County Court for further proceedings in accordance with the following memorandum: Defendant appeals from a judgment convicting him after a jury trial of grand larceny in the third degree (Penal Law § 155.35). We agree with defendant that County Court erred in denying his request for a Huntley hearing on his motion to suppress statements in which he admitted to his employer in the presence of two police officers at the store where he worked that he had taken certain merchandise from the store. Although the court granted leave to defendant to submit another affidavit with further allegations of fact, “[a] motion to suppress a statement as involuntary need not be supported by sworn allegations of fact” (People v Stroman, 280 AD2d 887, 887 [2001], after remand 286 AD2d 975 [2001], lv denied 97 NY2d 688 [2001]). Moreover, “[e]ven where it ‘appears highly unlikely’ that the private actor was acting as a police agent, defendant is entitled to a Huntley hearing in order to develop the facts” (id.). We therefore hold the case, reserve decision and remit the matter to Monroe County Court for a Huntley hearing with respect to those statements. Present — Pine, J.P., Scudder, Kehoe, Lawton and Hayes, JJ.