Opinion
October 24, 1991
Appeal from the Supreme Court, New York County, George Roberts, J., Eve Preminger, J.
The defendant was indicted for criminal sale of a controlled substance in the third degree after his arrest pursuant to a "buy and bust" operation. He thereafter moved to suppress any physical evidence and identification testimony. In that portion of his motion papers seeking to suppress physical evidence, defense counsel alleged that the defendant was grabbed and searched immediately after exiting a building where he had been visiting a friend. Although no contraband was recovered, the defendant alleged that he was arrested nonetheless. He therefore maintained that since his seizure and search was not based upon probable cause, any property recovered must be suppressed. In support of the defendant's motion to suppress identification testimony, counsel alleged, inter alia, that the defendant's identification by an undercover police officer was secured after the defendant was arrested without probable cause.
In response to the defendant's motion, the People indicated that they would not introduce physical evidence against him at trial. However, they opposed the motion to suppress identification evidence and the granting of a hearing on the issue, claiming that the identification of the defendant by the under-cover officer was merely confirmatory in nature, that the identification procedure was not, therefore, unnecessarily suggestive, that the identification was not obtained in violation of the defendant's right to counsel, and that it was obtained after the defendant's arrest which was supported by probable cause.
The Supreme Court denied the defendant's motion to suppress physical evidence as "moot" and summarily denied his request for a Dunaway/Wade hearing. We agree with the defendant that since his motion papers sufficiently alleged facts challenging the constitutionality of his arrest and further alleged that the identification was the fruit of that illegality, it was error to deny his request for a hearing (CPL 710.60, [4]; see, People v. Miller, 162 A.D.2d 248, lv dismissed 76 N.Y.2d 895; People v Marte, 149 A.D.2d 335; People v. Estrada, 147 A.D.2d 407). The People's response merely created issues of fact which could be resolved only upon a hearing (People v. Zarate, 160 A.D.2d 466, lv dismissed 76 N.Y.2d 799; People v. Mosley, 136 A.D.2d 500).
Concur — Carro, J.P., Rosenberger, Wallach, Asch and Kassal, JJ.