Opinion
March 8, 1996
Appeal from the Supreme Court, Monroe County, Affronti, J.
Present — Pine, J.P., Wesley, Balio, Davis and Boehm, JJ.
Order unanimously reversed on the law, indictment reinstated and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Supreme Court erred in summarily granting defendant's suppression motion based upon the People's failure to submit a written answer. The court may suppress evidence without a hearing if the People "concede the truth of allegations of fact" in the motion papers or if they stipulate to suppression of the evidence (CPL 710.60 [a]). Here, the prosecutor stated in court that the People were not conceding the truth of defendant's factual allegations ( cf., People v Gruden, 42 N.Y.2d 214), and there was no stipulation. The People are not required to submit a written answer ( see, CPL 710.60), and the court erred in deeming their failure to do so a concession of defendant's factual allegations. We also note that defense counsel had agreed with the prosecutor that a suppression hearing should be held and did not request that the motion be summarily granted. Thus, we remit the matter to Supreme Court for a hearing on the suppression motion.