Defendant made a pretrial motion to suppress his confession, claiming that it was the product of an illegal arrest. In his motion papers, defendant alleged that prior to his arrest he had not been observed with any contraband or acting in a suspicious manner. He claimed, therefore, that there had not been probable cause for his arrest. As the People now concede, and as is in any case evident, defendant's allegations were sufficient to require that a Dunaway hearing be held (see, People v Lee, 130 A.D.2d 400; People v Carrasquillo, 70 A.D.2d 842; CPL 710.60). Justice Rothwax, however, summarily denied the defendant's Dunaway motion without a hearing. Although the summary denial may have appeared efficient at the time, its ultimate consequence will be unnecessarily to delay the adjudication of defendant's case. If this were an isolated case it would not merit comment but we have on at least six previous occasions had to hold appeals in abeyance and remand for hearings upon suppression motions inappropriately denied by the same Judge. (See, People v Jones, 136 A.D.2d 510; People v Brown, 136 A.D.2d 510; People v Martin, 135 A.D.2d 355; People v Fore, 131 A.D.2d 329; People v Lee, supra; People v Patterson, 129 A.D.2d 527.)
Concur — Murphy, P.J., Asch, Kassal and Wallach, JJ.
Kupferman, J., dissents in a memorandum as follows:
The majority would mandate yet another undue burden on the criminal justice system. (Cf., People v Rivera, 144 A.D.2d 258, 261 [dissent]; People v Mosley, 136 A.D.2d 500, 501 [dissent].)
While the People consent to a Dunaway hearing (Dunaway v New York, 442 U.S. 200), this court is not relieved from performing its judicial function. (See, People v Berrios, 28 N.Y.2d 361, 366-367; People v Lewis, 26 N.Y.2d 547.)
Dunaway (supra) determined that custodial questioning on less than probable cause for arrest was violative of the Fourth Amendment, so the question becomes one of whether there was proper police conduct. In the case at bar, New York City Housing Authority detectives went to the Baruch Housing Project, on the lower east side, to arrest the defendant and to execute a "no-knock" search warrant seeking a machine gun and a rifle. He was convicted after a jury trial of two counts of criminal possession of a weapon in the third degree and sentenced as a violent predicate felony offender.
Although a Huntley hearing was held, a knowledgeable Judge denied the motion for a Dunaway hearing.
This court, by its ruling herein, would mandate a Dunaway hearing in all situations where a defendant simply claims that there has been no probable cause for his arrest. In this case, the defendant was observed several times going into the apartment which was the subject of the warrant, and he has admitted that he had carried the machine gun into the apartment in question.