Summary
In Muhammed, the defendant was arrested after being observed selling drugs to a separately charged individual. "In his moving papers, defendant denied selling drugs immediately before his arrest or at any time that day, and stated that he had not committed any observable crime, that there were no drugs or other contraband in plain view, and that he was not engaged in any suspicious behavior" (290 AD2d at 248).
Summary of this case from People v. RiveraOpinion
5573
January 8, 2002.
Appeal from judgment, Supreme Court, New York County (Bonnie Wittner, J.), rendered December 13, 1999, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 2½ to 5 years, held in abeyance and the matter remanded for a hearing on defendant's motion to suppress evidence.
DAVID M. COHN RESPONDENT.
CAROL A. ZELDIN for DEFENDANT-APPELLANT.
Before: Williams, J.P., Tom, Mazzarelli, Rosenberger, Ellerin, JJ.
Given the information available to defendant, his factual averments were sufficient to entitle him to a hearing. The People had disclosed simply that defendant was arrested minutes after being observed selling drugs to a separately charged individual. In his moving papers, defendant denied selling drugs immediately before his arrest or at any time that day, and stated that he had not committed any observable crime, that there were no drugs or other contraband in plain view, and that he was not engaged in any suspicious behavior. Accordingly, defendant raised a factual issue warranting a hearing (see, People v. Hightower, 85 N.Y.2d 988, 989-990; People v. Lopez, 264 A.D.2d 434; People v. Marquez, 246 A.D.2d 330).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.