Opinion
February 16, 2000
Appeal from Judgment of Supreme Court, Monroe County, Galloway, J. — Burglary, 1st Degree.
PRESENT: GREEN, A. P. J., HAYES, WISNER AND BALIO, JJ.
Judgment unanimously affirmed.
Memorandum:
Supreme Court summarily denied that part of the suppression motion of defendant alleging that his statement to the police was the product of an illegal arrest ( see, Dunaway v. New York, 442 U.S. 200). The court determined that defendant failed to set forth sufficient factual allegations in the motion papers to warrant a hearing on that issue ( see, CPL 710.60 [b]; People v. Mendoza, 82 N.Y.2d 415, 422; People v. Brunson, 226 A.D.2d 1093, lv dismissed 88 N.Y.2d 981). Following a Huntley hearing, court denied that part of defendant's suppression motion that the statement was involuntarily made ( see, CPL .45). On appeal, defendant does not contend that the court's denial was improper. Rather, defendant contends that record developed at the Huntley hearing conducted subsequent that summary denial establishes that his statement was the of an illegal arrest. We reject that contention. Because of the court's summary denial of that part of the motion, the legality of the arrest was not contested at the Huntley hearing. "It was this ruling by the hearing court and not a failure of proof by the People that resulted in evidence of the legality of the [arrest] remaining undeveloped" ( People v. Giles, 73 N.Y.2d 666, 671; see, People v. Havelka, 45 N.Y.2d 636, 642-643), and this Court may not rely upon the record of the Huntley hearing to decide the merits of the unlitigated ground for suppression raised in defendant's motion ( see, People v. Giles, supra, at 670-671).