Opinion
June 6, 1994
Appeal from the Family Court, Queens County (De Phillips, J.).
Ordered that the matter is remitted to the Family Court, Queens County, to hear and report on that branch of the appellant's omnibus motion which was to suppress physical evidence, and the appeal is held in abeyance in the interim. The Family Court, Queens County, is to file its report with all convenient speed.
The supporting depositions annexed to the juvenile delinquency petition alleged that the appellant was arrested after a police officer saw him hold a bag of cocaine in plain view and then attempt to conceal it. In his motion, inter alia, to suppress physical evidence, the appellant expressly denied that he held a controlled substance in plain view or tried to conceal it, thereby raising an issue of fact as to whether the police had probable cause to arrest him. The Family Court's denial, without a hearing, of the branch of the appellant's motion which was to suppress physical evidence was therefore error (see, People v Mendoza, 82 N.Y.2d 415). However, there is no merit to the appellant's request that this Court order a suppression hearing before a different Judge, absent any showing of prejudice (see, People v. Montpeirous, 133 A.D.2d 709). Sullivan, J.P., Lawrence, Pizzuto, Joy and Goldstein, JJ., concur.