People v. Walcott

203 A.D.2d 605, 612 N.Y.S.2d 937

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 25, 1994
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Goldberg, J.), rendered August 14, 1991, convicting him of robbery in the first degree (three counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, without a hearing, of that branch of the defendant’s omnibus motion which was to suppress the identification testimony as the fruit of an unlawful arrest.

Ordered that the matter is remitted to the Supreme Court, Kings County, to hear and report on that branch of the defendant’s motion which sought suppression of identification testimony on the grounds that it was the fruit of an unlawful arrest, and the appeal is held in abeyance in the interim; the Supreme Court, Kings County, is to file its report with all convenient speed.

We agree with the defendant that it was error to summarily deny that branch of his motion which was to suppress identification testimony as the fruit of an illegal arrest. The People opposed defendant’s suppression motion solely on the basis that no weapons were recovered from the defendant. However, no issue with respect to weapons was raised by the defendant. Nor did the court deny this branch of the motion to suppress on the ground that the defendant had failed to allege a sufficient factual basis to warrant a hearing on whether his arrest was lawful. Under these circumstances we deem it appropriate to remit this matter for a hearing on this issue (see, People v Bonilla, 82 NY2d 825). In this regard, we find the People’s contention that defendant’s claim is unpreserved for appellate review to be without merit. Balletta, J. P., Santucci, Krausman and Florio, JJ., concur.