Aрpeal by the defendant (1) from a judgment of the Supreme Court, Queens County (Thorp, J.), rendered November 28, 1983, convicting him of criminal possession of a controlled substance in the first degree, upon a jury verdict, and imposing sentence, and (2) by permission, from an order of the same court, datеd November 22, 1984, which, after a hearing, denied his motion to vacate the conviction based on newly discovered evidence. The appeal from the judgment brings up for review the denial (Brеnnan, J.) of the defendant’s application for a hearing to determine that branch of the defendant’s omnibus motion which was to suppress physical evidence and the denial, after a hеaring (Naro, J.), of that branch of the defendant’s motion which was to suppress certain statements.
Ordered that the judgment and the order are affirmed.
We agree with the defendant that it was error to summarily deny his application for a hearing on that branch of his motion which was to suppress physical evidence, since it was supportеd by allegations of fact. It was inappropriate for the court to make the factuаl determinations it did on the basis of the conflicting factual allegations contained in the affirmаtions of the defense counsel and the Assistant District Attorney made on information and belief. However, despite the court’s ruling, the defense counsel was allowed to fully explore the issue of whether the bag containing the cocaine was constitutionally seized, which seizure provided a lawful predicate for the defendant’s arrest. Therefore, although the Huntley hearing court rеfused to make a determination of whether the bag was lawfully seized, holding itself bound by the prior detеrmination on the Mapp motion, the record is fully developed on the issue and allows this court to make the determi
Both the record and the findings of fact made at the Huntley hearing establish that the defendant abandoned the paper bag with the coсaine independently of any unlawful police action (see, People v Boodle,
The defendant’s next contention is that the court improperly denied his motion pursuant to CPL 440.10 (1) (g) to vаcate the judgment. We agree with the court’s denial of the motion. The hearing court properly held that the newly discovered evidence, in the form of testimony by defense witness Debbie Nelson, was incredible and as such did not meet the standard necessary for success on the motion. Nelson had testified at trial that the defendant was across the street from where the policе retrieved a white plastic bag containing the cocaine from under a red Jaguar autоmobile. The witness now states that it was she who had possession of the white plastic bag and she who threw it under the car when the police approached. This revelation conflicts with the testimony of defense witness Timothy Miller that he saw the bag in the hands of a white man who was having an altеrcation with another man. Miller said he saw a man drop the bag and kick it beneath the Jaguar whеn the police approached. Nelson’s changed testimony would therefore havе conflicted dramatically with that of Miller and could not have had any favorable impact on the defendant’s case. It could only render his defense more confused and incredible in the face of the strong testimony by the three police officers (see, CPL 440.10 [1] [g]).
The rebuttal testimony of the mаnager of the funeral parlor that the body of Nelson’s deceased uncle was not in reрose at the funeral parlor at the time of the arrest, as the witness
Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]).
The defendant’s remaining contentions are without merit. Mollen, P. J., Thompson, Kunzeman and Rubin, JJ., concur.