Tuesday, October 8, 2013

Does a defendant have to sign an affidavit in support of a suppression motion?

by

Jill Paperno, 

Special Assistant Monroe County Public Defender

Although it has been twenty years since the New York Court of Appeals in People v. Mendoza (82 NY2d 415 [1993])  held that a defendant does not have to sign an affidavit in support of a suppression motion, some local judges still believe they must.  Hopefully, the Fourth Department's recent decision in People v. Starlet Battle, decided on 9/27/13, will help put this issue to rest.  In Battle, the Fourth Department affirmed defendant's conviction based on factual insufficiency of the allegations contained in the motion.  However, the Court stated

We agree with defendant that the court erred in ruling that defendant, in order to be entitled to a suppression hearing, was required to submit an affidavit in support of her motion.  As the Court of Appeals has stated, "suppression motions must be in writing, state the legal grounds of the motion and 'contain sworn allegations of fact,' made by defendant or 'another person' " (People v. Mendoza, 82 NY2d 415, 421, quoting CPL 710.60[1].  A suppression motion may be based on factual allegations made upon information and belief by defense counsel, provided that, as here, the sources of the attorney's information and the grounds of his or her belief are identified in the motion papers (see CPL 710.60[1]).  The court also erred in suggesting that defendant was required to deny participation in the crime.  It is well settled that a defendant must 'deny participating in the transaction or suggest some other grounds for suppression' in order to warrant a suppression hearing (see Mendoza, 82 NY2d at 429 [emphasis added]).   

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