People v. Tucker

150 A.D.2d 177, 540 N.Y.S.2d 709, 1989 N.Y. App. Div. LEXIS 5447

Opinion

Appeal from the judgment, Supreme Court, New York County (Rose Rubin, J., at suppression hearing and trial), rendered June 16, 1987, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree (Penal Law § 265.02 [4]) and criminally possessing a hypodermic instrument (Penal Law § 220.45), and sentencing him, as a second felony offender, to concurrent indeterminate terms of imprisonment of from 3Vi to 7 years and one year, respectively, is unanimously held in abeyance, the suppression determination is vacated, on the law, the facts, and as a matter of discretion in the interest of justice and the matter remanded for a new suppression hearing.

After examining the record of the Mapp hearing and the relevant testimony at trial, we are persuaded that this matter is appropriate for the exercise of our interest of justice jurisdiction, and remand for a de novo suppression hearing to explore factual discrepancies which require resolution before a proper determination on the motion to suppress may be made. Concur—Carro, J. P., Asch, Kassal, Smith and Rubin, JJ.