Opinion
February 14, 1984
Appeals by defendant from two judgments of the County Court, Westchester County (Donovan, J.), both rendered April 6, 1981, convicting him of robbery in the first degree (two counts), upon his pleas of guilty, and imposing sentences. Judgments affirmed. By judgment rendered May 15, 1979, defendant was convicted, after a jury trial, of two counts of robbery in the first degree. We reversed that judgment and ordered a new trial ( People v Ball, 77 A.D.2d 625). Defendant thereafter pleaded guilty. On these appeals, defendant challenges the denial of his motions to suppress physical evidence and any in-court identifications. He also claims that he was deprived of effective assistance of counsel as he was purportedly advised that he was not entitled to de novo pretrial hearings. We reject these arguments and affirm. Although defendant failed to challenge the suppression rulings on the prior appeal, we may review them at this juncture (see People v Blake, 35 N.Y.2d 331, 334-335). Nonetheless, we find no reversible error. We have examined the photographic array and find that it is in no way suggestive. All of the subjects have similar builds and moustaches. Moreover, there is ample evidence to support a finding that any in-court identifications would have had an independent source ( People v Tillman, 74 A.D.2d 911). In addition, the search for and seizure of the weapon was proper as the People overwhelmingly established at the pretrial hearing that the defendant's girlfriend gave her consent to the search ( People v Cosme, 48 N.Y.2d 286, 290). Nor was the defendant deprived of effective assistance of counsel in any sense. Although the trial court has discretion to reopen a suppression hearing (CPL 710.40, subd 2; People v Fuentes, 53 N.Y.2d 892) or permit defendant to make a suppression motion for the first time after an appellate court has remitted the case for a new trial ( People v Cohen, 58 N.Y.2d 844, 846), absent newly discovered evidence or a contrary directive in the order remitting the case for a new trial, there is no right to de novo suppression hearings (see CPL 710.40, subd 1; 255.20, subd 1; 470.45; People v Rice, 35 N.Y.2d 656, 657). Titone, J.P., Lazer, Thompson and O'Connor, JJ., concur.