Opinion
May 26, 1987
Appeal from the Supreme Court, New York County (Herbert I. Altman, J.).
On review of the record, we agree that the suppression court erred in summarily denying so much of defendant's motion as sought to suppress physical evidence without holding an evidentiary hearing as required by CPL 710.60 (4). In moving to suppress, defendant stated that, on September 12, 1985, at about 8:30 P.M., he was on a motorcycle at the tollgate of the Triborough Bridge, when he was approached by several police officers, who "were making an effort to determine whether I had committed a violation of the vehicle and traffic laws." A search of defendant's person and belongings resulted in the discovery of a manila envelope containing one pound of heroin. He alleges that, since the officers did not observe the commission of "any crime", they lacked probable cause in terms of either the stop or the ensuing search. Plainly, a reasonable interpretation of the affidavit would be that defendant had not been observed in violation of any traffic law or regulation.
The People, in opposing the holding of a Mapp hearing, claim that the police officers had probable cause to believe defendant was in possession of a stolen motorcycle and that he had been stopped for a traffic infraction. However, the record fails to disclose the nature of that infraction. While it is contended that defendant's inability to produce an unexpired registration or any identification, either for himself or the vehicle, authorized the police to take him into custody, nowhere in the record is the factual predicate for the initial stop.
Under the circumstances, it was error for the suppression court to summarily deny the motion. The prosecution's version of the facts as to the legality of the stop, which, in any event, was inadequate to establish legality as a matter of law, differed from that offered by defendant. As a result, this sufficed to create a factual issue, which required a hearing. (See, People v Patterson, 129 A.D.2d 527; People v. Martinez, 111 A.D.2d 30; People v. Banks, 100 A.D.2d 780.) As we observed in People v Banks (supra), "Since the prosecution did not concede the truth of the factual allegations made by defendant in support of his omnibus motion to suppress (CPL 710.60, subd 2, par [a]), the statute required the court to hold a hearing and make findings of fact (CPL 710.60, subd 4)."
Thus, since the record is insufficient to permit us to make our own findings of fact and conclusions of law on the issue, the matter should be remanded for a suppression hearing, with the appeal held in abeyance pending the remand (see, People v Martinez, supra; Matter of Obulio M., 106 A.D.2d 297).
Concur — Sandler, J.P., Sullivan, Carro, Kassal and Wallach, JJ.