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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Sergio PERRILLA, Defendant-Appellant.

Decided: June 24, 1997

Before ROSENBERGER, J.P., and NARDELLI, RUBIN and WILLIAMS, JJ. Carolyn Pokorny, for Respondent. Erin B. Spiess, for Defendant-Appellant.

Appeal from judgment, Supreme Court, Bronx County (William Wallace III, J., on motion;  Steven Barrett, J., at suppression hearing, trial and sentence), rendered December 15, 1994, convicting defendant, after a jury trial, of two counts of robbery in the first degree and one count of robbery in the second degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 16 years to life, held in abeyance and the matter remanded to Supreme Court for a Dunaway hearing.

 The hearing court's refusal to address defendant's claim that he was arrested without probable cause was improper (People v. Davis, 169 A.D.2d 379, 564 N.Y.S.2d 320).   Here, where defendant raised this issue in his omnibus motion, the People consented to a hearing that would encompass the issue, the motion court ostensibly ordered a hearing to include the issue and where, in the course of the hearing held, it became clear that defense counsel had been misled on the issue by the People's concededly inaccurate CPL 710.30 notice, it unquestionably should have been addressed at the hearing.   Moreover, the defendant alleged sufficient factual allegations to support a hearing as to probable cause for the arrest (see, People v. Mendoza, 82 N.Y.2d 415, 604 N.Y.S.2d 922, 624 N.E.2d 1017;  People v. Estrada, 147 A.D.2d 407, 538 N.Y.S.2d 5), and, as a matter of fairness, the revelation of the defective notice at the hearing held required expansion of that hearing to include the probable cause issue (see, People v. Misuis, 47 N.Y.2d 979, 981, 419 N.Y.S.2d 961, 393 N.E.2d 1034;  People v. Wise, 46 N.Y.2d 321, 329, 413 N.Y.S.2d 334, 385 N.E.2d 1262).   Also, given the defective notice and the ambiguity of the motion court's ruling on the issue, the hearing court was not bound by that ruling, where such adherence would clearly result in significant unfairness (see, People v. Blake, 35 N.Y.2d 331, 334, 361 N.Y.S.2d 881, 320 N.E.2d 625;  see also, People v. Delgado, 225 A.D.2d 478, 639 N.Y.S.2d 918, lv. denied 88 N.Y.2d 983, 649 N.Y.S.2d 390, 672 N.E.2d 616).   The Dunaway issue is a significant one since the only evidence directly linking defendant to the crime was the in-court identification by complainant, (People v. Powell, 105 A.D.2d 712, 713, 481 N.Y.S.2d 157 affd. 67 N.Y.2d 661, 499 N.Y.S.2d 669, 490 N.E.2d 536;  People v. McGill, 47 A.D.2d 961, 962, 367 N.Y.S.2d 301;  see also, People v. Dodt, 61 N.Y.2d 408, 417, 474 N.Y.S.2d 441, 462 N.E.2d 1159).

In view of the foregoing, the parties' remaining contentions need not be addressed at this time.