Opinion
2014-03-19
The PEOPLE, etc., respondent, v. Dwayne D. McLAREN, appellant.
Barry Krinsky, Brooklyn, N.Y., for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschitz, and Emil Bricker of counsel), for respondent.
Barry Krinsky, Brooklyn, N.Y., for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschitz, and Emil Bricker of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kohm, J.), rendered April 30, 2012, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review so much of an order of the same court (Griffin, J.), dated February 17, 2011, as, in effect, upon renewal, adhered to a prior determination in an order dated November 30, 2010, denying, without a hearing, that branch of the defendant's omnibus motion which was to suppress certain physical evidence.
ORDERED that the matter is remitted to the Supreme Court, Queens County, to hear and report on that branch of the defendant's omnibus motion which was to suppress physical evidence seized from his person and car incident to his arrest, and the appeal is held in abeyance in the interim. The Supreme Court, Queens County, shall file its report with all convenient speed.
The allegations contained in the defendant's motion, in effect, to renew that branch of his omnibus motion which was to suppress certain physical evidence were sufficient to raise a factual dispute concerningthe seizure of physical evidence from his person and car incident to his arrest ( see People v. Burton, 6 N.Y.3d 584, 815 N.Y.S.2d 7, 848 N.E.2d 454). Accordingly, a hearing should have been granted on that issue, and we remit the matter to the Supreme Court, Queens County, for that purpose. In the interim, the appeal will be held in abeyance. We decide no other issues at this time.
DILLON, J.P., SGROI, COHEN and MILLER, JJ., concur.