Opinion
May 9, 1985
Appeal from the Supreme Court, Bronx County (Daniel J. Sullivan, J., Joseph Cohen, J.).
On review of the record, we agree that the suppression court erred in summarily denying defendant's motion to suppress physical evidence without holding an evidentiary hearing as required by CPL 710.60 (4). In moving to suppress, defendant, through counsel, alleged that on December 30, 1981, he was behind the wheel of a van which was double parked, with the motor running, at or near the corner of 167th Street and Bryant Avenue, in The Bronx. It is asserted that although defendant and the codefendant, who was with him in the van were not engaged in any suspicious or illegal activity, the police blocked the path of the van and two officers, with guns drawn, approached, ordered defendant out of the van and proclaimed, "If he moves blow his head off." It appears that as defendant exited the van, he advised the officers, "I have a gun in my waistband", at which point, a gun fell from the codefendant's lap and into plain view. A search of defendant resulted in the recovery of a loaded .32 caliber revolver from his waistband and an inspection of the van led to the recovery of a shotgun, a .357 magnum and ammunition. A .38 caliber revolver was recovered from the codefendant.
In opposing the motion, although the Assistant District Attorney denied the factual allegations, he did consent to the holding of an evidentiary hearing. However, while the court did direct a hearing solely on the motion to suppress defendant's statement, it summarily denied that phase of the motion to suppress physical evidence, finding the factual allegations insufficient.
We disagree. While the moving papers may have been insufficient in failing to conform to the statute (CPL 710.60), since counsel did not set forth the source of his information, nevertheless, the prosecutor waived compliance with the formal requirements of the statute by consenting to the holding of a suppression hearing ( see, People v. Taylor, 97 A.D.2d 381; People v. Jenkins, 73 A.D.2d 694). The prosecutor's response to the motion was most conclusory, consisting of a general denial of the defendant's factual allegations. Inasmuch as no basis was offered for summary denial of the motion to suppress under CPL 710.60 (3), a hearing should have been held ( People v. Banks, 100 A.D.2d 780; People v. McNeil, 55 A.D.2d 573; CPL 710.60).
Accordingly, since the record is insufficient to permit us to make our own findings of fact and conclusions of law on the issue, the matter should be remanded for a suppression hearing, with that branch of the appeal held in abeyance pending the remand ( see, Matter of Obulio M., 106 A.D.2d 297).
Concur — Murphy, P.J., Kupferman, Sullivan, Kassal and Rosenberger, JJ.