

People v McGee (2016 NY Slip Op 01387)





People v McGee


2016 NY Slip Op 01387


Decided on February 25, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on February 25, 2016

Friedman, J.P., Renwick, Saxe, Moskowitz, JJ.


15 4552/11

[*1]The People of the State of New York, Respondent,
vRussell McGee, Defendant-Appellant.


Richard M. Greenberg, Office of the Appellate Defender, New York (Anant Kuman of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Frank Glaser of counsel), for respondent.

Appeal from judgment, Supreme Court, New York County (Carol Berkman, J.), rendered May 9, 2012, as amended July 24, 2012, convicting defendant, upon his plea of guilty, of attempted robbery in the second degree, and sentencing him, as a second violent felony offender, to a term of six years, held in abeyance, and the matter remanded for a Wade  hearing on defendant's suppression motion.
Defendant argues that the court erred in denying, without a hearing, his motions to suppress the cell phone he was alleged to have stolen from the victim, and the victim's identification of defendant, which, according to the People, was the product of an "inadvertent observation" that occurred when the victim was waiting in a police car to go into the precinct and defendant was brought to the precinct by officers. Preliminarily, it should be noted that the motion court, in denying a Dunaway/Mapp/Wade  hearing, did not comply with the requirement of CPL 710.60(6), to "set forth on the record its findings of fact, its conclusions of law and the reasons for its determination."
The court, however, erred only in denying a Wade  hearing. While such a hearing is not required where a court has sufficient information "to conclude, as a matter of law, that the confrontation between the witness and defendant was either unarranged, or was arranged independently of the police" (People v Omaro , 201 AD2d 324 [1st Dept 1994]), that was not the case here. The question whether the coincidence of the victim's presence in a police car outside the precinct and defendant's arrival at the precinct in police custody constituted a police-arranged procedure was a fact question that defendant was entitled to have resolved at a hearing (see People v Dixon , 85 NY2d 218, 222-223 [1995]; see also People v Clark , 85 NY2d 886, 888-889 [1995]).
The court correctly denied defendant's application for a Mapp/Dunawa y hearing, as none of defendant's allegations contradicted the People's submission explaining that the officers [*2]witnessed the crime and then pursued the observed perpetrator, who discarded the allegedly stolen cell phone in the course of his flight.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 25, 2016
CLERK


