People v Aguasvivas

People v Aguasvivas 2018 NY Slip Op 01155 Decided on February 20, 2018 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 February 20, 2018
Richter, J.P., Manzanet-Daniels, Andrias, Gesmer, JJ.
3338/08 5748 5749

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

v

Jose Aguasvivas, Defendant-Appellant.

Rosemary Herbert, Office of the Appellate Defender, New York (Anastasia Heeger of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Andrew J. Zapata of counsel), for respondent.

Appeal from judgment, Supreme Court, Bronx County (John W. Carter, J. at suppression hearing; Barbara Newman, J. at jury trial and sentencing), rendered July 19, 2011, convicting defendant of manslaughter in the first degree, and sentencing him to a term of 13 years, and appeal from order, same court (Barbara Newman, J.), entered on or about April 11, 2013, which denied defendant's CPL 440.10 motion to vacate the judgment, held in abeyance, and the matter is remitted to Supreme Court for a new suppression hearing.

At a hearing on his CPL 440.10 motion, defendant made a sufficient showing to warrant a new hearing on his motion to suppress his inculpatory statements. The record developed at the CPL 440.10 hearing, taken together with the records of the suppression hearing and trial, demonstrates that there were challenges to the voluntariness of the statements that should have been asserted at the suppression hearing (see People v Clermont, 22 NY3d 931 [2013]).

At this stage of the appeal, we do not address defendant's remaining claims.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 20, 2018

CLERK