People v. Lopez

Feb 6, 1995
Versions:212 A.D.2d 549
623 N.Y.S.2d 125

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Moskowitz, J.), rendered June 22, 1992, convicting him of criminal possession of stolen property in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, without a hearing, of the defendant’s oral motion to suppress physical evidence.

*550Ordered that the matter is remitted to the Supreme Court, Kings County, to hear and report on the branch of the defendant’s omnibus motion which was to suppress physical evidence, and the appeal is held in abeyance in the interim. The Supreme Court, Kings County, is to file its report with all convenient speed.

The defendant’s contention regarding his written omnibus motion is not preserved for appellate review since the Supreme Court did not rule on the branch of the motion which was to suppress physical evidence (see, CPL 710.60 [6]), and the defendant failed to bring that fact to the Supreme Court’s attention. However, it was error to summarily deny the defendant’s oral motion to suppress physical evidence. The defendant made a sufficient factual showing to warrant a hearing on the issues that he raised in his oral motion (see, People v Mendoza, 82 NY2d 415; People v Grajales, 175 AD2d 293; People v Alvarez, 151 AD2d 684). Miller, J. P., O’Brien, Santucci and Florio, JJ., concur.