People v Sanchez

[*1] People v Sanchez 2007 NY Slip Op 51376(U) [16 Misc 3d 1110(A)] Decided on July 16, 2007 Criminal Court Of The City Of New York, New York County Mandelbaum, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through July 19, 2007; it will not be published in the printed Official Reports.

Decided on July 16, 2007
Criminal Court of the City of New York, New York County

The People of the State of New York

against

Ricardo Sanchez, Defendant.



2006NY087522



For the Defendant: Wendell Cruz, Esq., New York County Defender Services

For the People: Robert M. Morgenthau, District Attorney, New York County (Samuel David of counsel)



Robert M. Mandelbaum, J.

Is a defendant entitled to a suppression hearing premised on a claim of unlawful seizure when the alleged victim has told the police that the defendant assaulted him?

Defendant moves to suppress identification testimony for which statutory notice has been served (see CPL 710.30 [1] [b]), contending that the identification procedure was both unduly suggestive and the fruit of an unlawful seizure. In the alternative, defendant requests that a hearing be held on his claims. The court previously entered an order granting the request for a hearing on the issue of suggestiveness (see United States v Wade, 388 US 218 [1967]), but denying the request for a hearing on the legality of defendant's seizure (see Dunaway v New York, 442 US 200 [1979]). This opinion serves to explain the basis for the court's ruling.

"[H]earings are generally not available merely for the asking" (People v Mendoza, 82 NY2d 415, 425 [1993] [internal quotation marks and citation omitted]). Rather, in most circumstances pretrial motions to suppress evidence must be supported by sworn allegations of fact (see CPL 710.60 [1]). Faced with such a motion, the court must summarily grant it if the motion papers allege a legal ground warranting suppression and the People concede the truth of all factual allegations necessary to support the motion (see CPL 710.60 [2] [a]),[FN1] or may summarily deny it if either the motion papers do not allege a legal basis for the motion or the sworn allegations of fact do not as a matter of law support the ground alleged (see CPL 710.60 [3] [a], [b]). If neither of these standards is met, the court must conduct an evidentiary hearing and make findings of fact essential to the determination of the motion (see CPL 710.60 [4]).

Factual allegations are unnecessary, however, when the defendant's motion is to suppress a statement as involuntarily made or an identification stemming from an improper procedure, since the court may not summarily deny a motion brought on those grounds (see CPL 710.60 [3] [b]; 710.20 [3], [6]; see also People v Weaver, 49 NY2d 1012, 1013 [1980] [unless the motion is to be summarily granted, "there must be a hearing whenever defendant claims his statement was involuntary no matter what facts he puts forth in support of that claim" (emphasis in original)]).

But not all motions to suppress statements are based on the ground that the statement was [*2]involuntarily made (see People v Huntley, 15 NY2d 72 [1965]), and not all motions to suppress identification testimony rest on an allegation that the procedure was unduly suggestive (see Wade, 388 US 218). Rather, some motions to suppress statements and identifications are derivative that is, the evidence sought to be suppressed is claimed to be the tainted fruit of an unlawful seizure (see Dunaway, 442 US 200; see also United States v Crews, 445 US 463 [1980]; People v Gethers, 86 NY2d 159 [1995]). In that event, the motion to suppress is not based on a ground exempted by CPL 710.60 (3) (b), and thus requires supporting factual allegations to warrant a hearing.

Accordingly, in order to be entitled to a hearing on a motion to suppress a statement or identification testimony as the fruit of an unlawful seizure, the defendant must allege facts in support of his or her claim (see People v Gonzalez, 247 AD2d 328, 329 [1st Dept 1998]; People v Rosario, 245 AD2d 151 [1st Dept 1997]; People v McBryde, 223 AD2d 425 [1st Dept 1996]; People v Toxey, 220 AD2d 204 [1st Dept 1995]; People v Covington, 144 AD2d 238 [1st Dept 1988]; see also Mendoza, 82 NY2d at 422 ["the sufficiency of the movant's factual allegations most often arises on motions to suppress tangible evidence (Mapp) or other evidence as the fruit of an unlawful seizure (Dunaway)"]). Were it otherwise, a defendant charged with possession of contraband who made a statement to police would be automatically entitled to a hearing to challenge the basis for his arrest, whereas a similarly charged defendant who remained silent could not get such a hearing in the absence of specific factual averments. That cannot be the law.

Inasmuch as an evidentiary hearing is warranted only when a disputed issue of material fact actually exists, the requirement of sworn allegations supporting suppression may not be satisfied by mere conclusory assertions (see Mendoza, 82 NY2d at 426; People v Jones, 95 NY2d 721, 726 [2001]). Rather, the sufficiency of factual allegations made in support of a request for a hearing must be "evaluated by (1) the face of the pleadings, (2) assessed in conjunction with the context of the motion, and (3) defendant's access to information" (Mendoza, 82 NY2d at 426).

Accordingly, a defendant seeking a hearing must controvert the specific factual averments relied on by the People to establish the legality of the seizure (see People v Doyle, 273 AD2d 69 [1st Dept 2000]; People v Suggs, 268 AD2d 305 [1st Dept 2000]). A plain assertion that the defendant was arrested "without probable cause" will justify summary denial of the motion (see Mendoza, 82 NY2d at 427).

Thus, when a defendant has been arrested based on an alleged observation of criminality by a police officer, the defendant's specific denial of the wrongdoing places in issue the very facts relied on by the arresting officer to establish probable cause. For example, when a defendant is charged with criminal sale of a controlled substance arising from an alleged buy-and-bust operation, the denial that the defendant engaged in the criminal transaction allegedly witnessed by the police will place in issue the officer's basis for probable cause to arrest.

When the arrest is based not on observations by an officer, however, but on information provided to the police by an identified victim, a denial that the defendant committed the charged crime is of little relevance to the question of suppression. For in those circumstances, the arrest is based not on the defendant's commission of the crime, but on the alleged victim's report of the crime to the police. In other words, whether the victim's account is true or false, its mere reporting justifies the police in arresting the alleged perpetrator (see People v Hicks, 38 NY2d 90, 92 [1975]; People v Nieves, 26 AD3d 519, 520 [2d Dept 2006]; see also Barry Kamins, New [*3]York Search and Seizure § 1.02 [2] [b], at 1-78 [2007 ed] ["An accusation against a specific individual from the eyewitness-victim of a crime, is sufficient, absent materially impeaching circumstances, to establish probable cause to believe the offense was committed and that the identified perpetrator committed the crime"]). That being so, the arrest would be lawful even if the victim's story were fabricated, and evidence recovered as a result of the seizure would not be subject to suppression.

Accordingly, defendant's denial that he assaulted the victim does not take issue with the facts relied on by the People to establish the legality of his seizure, and thus does not warrant a hearing (see People v Roldan, 37 AD3d 300 [1st Dept 2007]). Instead, in order to obtain a hearing, defendant must deny the specific basis proffered as justification for the action taken by the police. In the context of an arrest for assault on a non-police victim, that would generally require a denial not of the commission of the crime, but of the fact of the victim's report to the police. In other words, defendant would have to deny, if he truthfully could, not that he assaulted the victim, but that the victim ever told the police that he had done so (cf. People v Solimine, 18 NY2d 477 [1966] [denying defendant's request for hearing to controvert search warrant premised on challenge to truthfulness of informant, rather than of officer]; People v Ward, 95 AD2d 233, 238 & n 2 [2d Dept 1983] [hearing may be granted when defendant alleges that officer did not in fact receive information he claims to have received; "that it may ultimately be shown that the citizen's information, although apparently reliable, was unfounded or deliberately falsified is generally irrelevant. This is so because the Fourth Amendment protects individuals against unreasonable governmental action, not against misconduct by fellow citizens" (internal citations omitted)]) .

To be sure, the factual sufficiency of defendant's allegations must be assessed not only in the context of the People's theory of the case (see Mendoza, 82 NY2d at 427), but also in light of the information available to him (see id. at 429; Jones, 95 NY2d at 728-729). Thus, if defendant had been arrested other than at the scene of the victim's report of the crime to the police, his inability to provide specific factual averments as to the statements allegedly made by the complaining witness might be excused (cf. People v Bryant, 8 NY3d 530 [2007] [People refused to disclose identity of witness on whose information probable cause was based; because defendant thus lacked critical information regarding the factual predicate for the seizure, he was not in a position to allege facts disputing the basis for his arrest]; People v Vasquez, 200 AD2d 344 [1st Dept 1994]).[FN2] But where, as here, defendant was arrested when the police arrived, in response to a 911 call, at a location where both defendant and the victim were present, defendant's failure to deny that the complainant accused defendant of having struck the complainant numerous times about the face and body with a long piece of wood, as alleged in the criminal court complaint an accusation that, if made, provided probable cause for defendant's arrest warrants denial of his request for a hearing on the legality of his seizure. Footnotes

Footnote 1: The motion must also be summarily granted if the People stipulate that the evidence sought to be suppressed will not be offered in evidence against the defendant (see CPL 710.60 [2] [b]).

Footnote 2: In any event, defendant does not allege that a "lack of access to relevant information was an impediment" to his motion (Mendoza, 82 NY2d at 431).