People v French

People v French 2014 NY Slip Op 08240 Decided on November 25, 2014 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 25, 2014
Gonzalez, P.J., Mazzarelli, Manzanet-Daniels, Gische, Clark, JJ.
13599 1783N/09

[*1] The People of the State of New York Respondent,

v

James French, Defendant-Appellant.

Steven Banks, The Legal Aid Society, New York (Harold V. Ferguson, Jr. of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Frank Glaser of counsel), for respondent.

Appeal from judgment, Supreme Court, New York County (Patricia M. Nunez, J. at summary denial of suppression motion; Robert M. Stolz, J. at jury trial and sentencing), rendered December 8, 2010, convicting defendant of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender previously convicted of a violent felony, to a term of eight years, held in abeyance, and the matter remanded for a hearing on defendant's motion to suppress identification testimony.

The court erred in summarily denying defendant's motion to suppress identification testimony as the product of an arrest without probable cause (see People v Mendoza, 82 NY2d 415 [1993]; People v Rivera, 42 AD3d 160 [1st Dept 2007]). While defendant's allegation that he was not engaged in criminal conduct at the time of his arrest was insufficient, standing alone, to frame a factual issue warranting a hearing, defendant also alleged that he did not engage in illegal or criminal activity "at that time nor any time prior," that he did not "mak[e] any sale to any person that day," that he was not "involved in any drug sale" and that he did not "hav[e] a drug related conversation on that day with any person." Accordingly, defendant sufficiently denied the drug sale that was the basis for his arrest. Under the circumstances, this was enough to require a hearing (see People v Hightower, 85 NY2d 988 [1995]; People v Rivera, 42 AD3d at 163).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 25, 2014

CLERK