PEOPLE v. BONNET (2001)

Judgment, Supreme Court, New York County (Brenda Soloff, J.), rendered July 15, 1998, convicting defendant, upon his plea of guilty, of attempted criminal possession of a controlled substance in the fifth degree, and sentencing him, as a second felony offender, to a term of 1 1/212 to 3 years, unanimously affirmed.

 Defendant's conviction was not jurisdictionally defective (compare, People v. D'Amico, 76 N.Y.2d 877, 561 N.Y.S.2d 411, 562 N.E.2d 488, with People v. Boston, 75 N.Y.2d 585, 555 N.Y.S.2d 27, 554 N.E.2d 64).   Defendant's waiver of indictment and prosecution by superior court information were valid, even though defendant had already been indicted, because the court had dismissed the indictment in its entirety while granting the People leave to re-present the charges (see, CPL 210.45[9] ).   This placed defendant back on a “formal pre-indictment procedural track” (People v. Casdia, 78 N.Y.2d 1024, 1026, 576 N.Y.S.2d 75, 581 N.E.2d 1330) prior to the use of the superior court information procedure (CPL 195.10;  People v. Noe, 170 A.D.2d 1029, 566 N.Y.S.2d 897, lv. denied 77 N.Y.2d 909, 569 N.Y.S.2d 941, 572 N.E.2d 624).   Moreover, the People also filed a new felony complaint containing the new charge of attempted fifth-degree possession.

 Summary denial of defendant's motion to suppress physical evidence was proper since the factual allegations set forth in defendant's motion papers were insufficient to raise a factual issue warranting a hearing (see, People v. Mendoza, 82 N.Y.2d 415, 604 N.Y.S.2d 922, 624 N.E.2d 1017).   Defendant's denial of unlawful activity “at any time prior to his arrest” failed to address the People's specific contention that defendant had sold drugs to an undercover officer, and defendant did not assert any other basis for suppression (see, People v. Jones, 95 N.Y.2d 721, 723 N.Y.S.2d 761, 746 N.E.2d 1053;  compare, People v. Hightower, 85 N.Y.2d 988, 990, 629 N.Y.S.2d 164, 652 N.E.2d 910).