Opinion
December 13, 1994
Appeal from the Supreme Court, New York County (Frederic Berman, J.).
Order, same court and Justice, entered February 24, 1992, which denied defendant's motion to vacate the judgment pursuant to CPL 440.10 (1) (c) and (d), unanimously affirmed.
Inasmuch as defendant's supplementary papers submitted in support of his motion for a suppression hearing created an issue of fact as to whether the money found on his person was constitutionally obtained pursuant to an unlawful arrest, which issue could only be resolved upon a hearing, the motion court erred in summarily denying defendant's motion (People v Sierra, 179 A.D.2d 601, 602, lv dismissed 79 N.Y.2d 1054; People v Mosley, 136 A.D.2d 500). With regard to the contraband, defendant failed to raise a privacy interest in the drugs and, therefore, had no standing to seek a suppression hearing on that issue (People v Wesley, 73 N.Y.2d 351, 358).
The court did not err in denying defendant's CPL 440.10 motion to vacate the judgment since it properly found that defendant's claims were based on matters in the record that could have been raised on direct appeal (People v Gonzalez, 158 A.D.2d 615, lv denied 76 N.Y.2d 735).
We have reviewed the remaining contentions, including those in defendant's pro se supplemental briefs, and find them to be without merit.
Concur — Sullivan, J.P., Rosenberger, Ross, Asch and Tom, JJ.