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

1286
KA 12-01414
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

                     V                              MEMORANDUM AND ORDER

JESSE F. JOHNSTON, DEFENDANT-RESPONDENT.


JASON L. COOK, DISTRICT ATTORNEY, PENN YAN, FOR APPELLANT.

MICHAEL A. JONES, JR., VICTOR, FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Yates County Court (W. Patrick
Falvey, J.), dated June 4, 2012. The order granted that part of the
omnibus motion of defendant seeking to suppress certain evidence.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law, that part of defendant’s omnibus
motion seeking to suppress evidence is denied, and the matter is
remitted to Yates County Court for further proceedings on the
indictment.

     Memorandum: The People appeal from an order granting that part
of defendant’s omnibus motion seeking to suppress evidence, i.e., a
weapon and oral statements made by defendant to an investigator
employed by the Sheriff’s Department. We previously determined that
County Court erred in suppressing the weapon and defendant’s
statements, but we held the case, reserved decision and remitted the
matter to County Court to consider other possible grounds for granting
that part of defendant’s motion seeking to suppress his statements
(People v Johnston, 103 AD3d 1202, lv denied 21 NY3d 912). Upon
remittal, the court rejected the other grounds advanced by defendant
with respect to suppression of his statements. Inasmuch as defendant
has no appeal as of right from an intermediate order denying a
suppression motion (see CPL 450.10; see also People v Merz, 20 AD2d
918), we do not address the propriety of the court’s determination
upon remittal that the other grounds advanced by defendant did not
warrant suppression of his statements. Thus, in accordance with our
prior decision in which we determined that the court erred in
suppressing the weapon and the statements, we deny that part of
defendant’s omnibus motion seeking to suppress evidence.



Entered:   January 3, 2014                        Frances E. Cafarell
                                                  Clerk of the Court
