        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1038
KA 13-00818
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JUSTIN JONES, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANE I. YOON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County (John
J. Ark, J.), rendered August 14, 2012. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second degree.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Supreme Court, Monroe County,
for further proceedings in accordance with the following memorandum:
On appeal from a judgment convicting him, upon his guilty plea, of
criminal possession of a weapon in the second degree (Penal Law §
265.03 [3]), defendant contends that Supreme Court erred in denying
his request for a probable cause hearing to determine the lawfulness
of his arrest and the admissibility of evidence obtained by the police
as a result thereof. We agree. As the People correctly concede, the
court erred in determining that defendant was not entitled to a
hearing because his motion papers did not include an affidavit from
defendant (see CPL 710.60 [1]; People v Mendoza, 82 NY2d 415, 421;
People v Battle, 109 AD3d 1155, 1156, lv denied 22 NY3d 1038). The
court also erred in determining that the factual assertions contained
in defendant’s moving papers were insufficient to warrant a hearing.

     In determining whether a hearing is required pursuant to CPL
710.60, “the sufficiency of defendant’s factual allegations should be
evaluated by (1) the face of the pleadings, (2) assessed in
conjunction with the context of the motion, and (3) defendant’s access
to information” (Mendoza, 82 NY2d at 426). Here, considering
defendant’s limited access to information regarding the basis for the
actions of the arresting officers, he “could do little more than
dispute the circumstances surrounding his arrest . . . [D]efendant’s
lack of access to information precluded more specific factual
allegations and created factual disputes, the resolution of which
required a hearing” (People v Bryant, 8 NY3d 530, 534). Thus, “[w]e
                                 -2-                          1038
                                                         KA 13-00818

conclude that, under the circumstances, defense counsel’s affirmation
was sufficient to raise a factual issue necessitating a hearing”
(People v Fagan, 203 AD2d 933, 933). We therefore hold the case,
reserve decision and remit the matter to Supreme Court to conduct a
suppression hearing.




Entered:   October 9, 2015                      Frances E. Cafarell
                                                Clerk of the Court
