People v. Terry , 144 A.D.3d 531 ( 2016 )

People v Terry (2016 NY Slip Op 07751)

People v Terry

2016 NY Slip Op 07751

Decided on November 17, 2016

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 17, 2016
Acosta, J.P., Renwick, Moskowitz, Feinman, Kahn, JJ.

6304/08

[*1]2219 The People of the State of New York, Respondent, -

v

Joseph R. Terry, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Ellen Stanfield Frieman of counsel), for respondent.

Appeal from judgment, Supreme Court, New York County (Carol Berkman, J. at motions; Charles H. Solomon, J. at jury trial and sentencing), rendered July 20, 2010, convicting defendant of robbery in the first degree, two counts of robbery in the second degree, and two counts of criminal possession of a weapon in the second degree, and sentencing him to an aggregate term of 17 years, held in abeyance and the matter remitted for a suppression hearing.

In People v Wynn (117 AD3d 487 [1st Dept 2014]), we held

that the court erred in summarily denying the motion of

defendant's codefendant to suppress statements and physical

evidence as the fruits of an unlawful arrest, notwithstanding the

conclusory nature of the factual allegations in her suppression

motion, where "[a]lthough the People provided defendant with

extensive information about the facts of the crime and the proof to be offered at trial, they provided no information whatsoever, at any stage of the proceedings, about how defendant came to be a suspect, and the basis for her arrest, made hours after the crime at a different location" (id. at 487-488). Because the factual allegations in the People's pleadings and relevant disclosures were materially the same in this case, we conclude that defendant's motion to suppress, although it asserted nothing more than that probable cause was lacking, was sufficient under the circumstances to entitle him to a hearing. Unlike the situation in People v Lopez (5 NY3d 753, 754 [2005]), defendant's statement did not "on its face show[] probable cause for defendant's

arrest."

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 17, 2016

CLERK