Opinion
August 26, 1999.
Appeal from the Supreme Court, Bronx County (Elbert Hinkson, J., on omnibus motion and Denis Boyle, J., at trial and sentence).
In a pretrial motion on Indictment No. 7517/94, defendant sought to suppress seven bags of heroin and pre-recorded bills seized from him upon arrest, as well as to suppress any subsequent identifications as the fruit of the poisonous tree. Defendant alleged that he was not involved in any suspicious or criminal activity, that he was legitimately in the area of the arrest since he was standing around with friends, that he had not engaged in any drug sales at any time that day and that he did not fit the description of anyone involved in a drug sale at that location. The motion court denied his motion for a Wade hearing, holding that the identification procedure was confirmatory, and denied his motion for Mapp hearing on the ground that the arrest was lawful, having been based on information from another officer. The People's opposition to a suppression hearing failed to allege what description the arresting officer received and whether defendant fit such description. The People alleged no facts supporting the lawfulness of defendant's arrest, but only alleged that after the arrest, his identity was confirmed. Defendant provided grounds and sworn allegations of fact supporting those grounds which entitled him to a Mapp/Dunaway hearing ( People v. Acevedo, 176 A.D.2d 631), for which purpose we remand.
Concur — Sullivan, J. P., Rosenberger, Tom, Saxe and Buckley, JJ.