Opinion
May 11, 1998
Appeal from the Supreme Court, Kings County (Lebowitz, J.).
Ordered that the matter is remitted to the Supreme Court, Kings County, to hear and report on that branch of the defendant's omnibus motion under Indictment No. 1169/96 which was to suppress physical evidence seized from his person incident to his arrest, and the appeals are held in abeyance in the interim. The Supreme Court, Kings County, shall file its report with all convenient speed.
The allegations contained in the defendant's omnibus motion under Indictment No. 1169/96 were sufficient to raise a factual dispute concerning the validity of his arrest and the seizure of physical evidence from his person incident to that arrest ( see, People v. Hightower, 85 N.Y.2d 988; People v. Wright, 244 A.D.2d 517; People v. Bennett, 240 A.D.2d 292). Accordingly, a hearing should have been granted on that issue, and the matter is remitted to the Supreme Court for that purpose.
However, as the Supreme Court found, the defendant failed to set forth a sufficient basis for suppression of crack cocaine found beneath garbage boxes in the vicinity of the defendant's arrest ( see, People v. Mendoza, 82 N.Y.2d 415, 430; Matter of Efrain R., 228 A.D.2d 303).
Ritter, J.P., Goldstein, McGinity and Luciano, JJ., concur.