Opinion
May 22, 1989
Appeal from the County Court, Nassau County (Delin, J.).
Ordered that the judgment is affirmed, and the matter is remitted to the County Court, Nassau County, for further proceedings pursuant to CPL 460.50 (5).
On February 5, 1985, the defendant was convicted of sodomizing a 17-year-old girl. This court reversed the defendant's conviction on grounds not relevant to the instant appeal and ordered a new trial (People v Hults, 122 A.D.2d 857). Prior to the second trial, the defendant moved to suppress the complainant's testimony and sought a Hughes-Tunstall hearing (People v Hughes, 59 N.Y.2d 523; People v Tunstall, 63 N.Y.2d 1), arguing that the victim's testimony was impaired by hypnosis which she underwent a few months after the incident.
Although the trial court has discretion to reopen a suppression hearing or permit the defendant to make a suppression motion for the first time after an appellate court has remitted the case for a new trial, absent newly discovered evidence or a directive in the order remitting the case for a new trial, the defendant is not entitled to a de novo suppression hearing as a matter of right (People v Ball, 99 A.D.2d 785; see also, People v Sturgis, 112 A.D.2d 757, lv denied 68 N.Y.2d 817). Since the defendant failed to present any new evidence justifying a Hughes-Tunstall hearing, we cannot conclude that the trial court's denial of his motion without a hearing was an improvident exercise of discretion.
Under the circumstances, the defendant's sentence was neither harsh nor excessive (see, People v Suitte, 90 A.D.2d 80).
We have examined the defendant's remaining contentions and find them either unpreserved for appellate review or without merit. Mangano, J.P., Thompson, Eiber and Spatt, JJ., concur.