PEOPLE v. THURMOND

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

The PEOPLE, etc., Appellant, v. Thaddeus THURMOND, Respondent.

Decided: August 11, 1997

Before ROSENBLATT, J.P., and MILLER, ALTMAN and GOLDSTEIN, JJ. Richard A. Brown, District Attorney, Kew Gardens, (Steven J. Chananie, John M. Castellano, and Kevin G. Dumbach, of counsel), for appellant. Dennis B. Coppin, Bayside, for respondent.

Appeal by the People, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Rotker, J.), dated December 12, 1995, as granted without a hearing that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the order is reversed insofar as appealed from, on the law, and the matter is remitted to the Supreme Court, Queens County, for a hearing and a new determination on that branch of the defendant's omnibus motion which was to suppress identification testimony.

After the People had twice failed to honor the trial court's directives to furnish an answer to the defendant's omnibus motion, the court properly deemed the factual allegations made by the defendant in his motion to be true (see, People v. Gruden, 42 N.Y.2d 214, 397 N.Y.S.2d 704, 366 N.E.2d 794).   Those boilerplate allegations, however, did not comply with the requirements of CPL 710.60(1), and consequently, the court erred in summarily granting the motion (see, CPL 470.15[2][a], [3][b];  People v. Mendoza, 82 N.Y.2d 415, 604 N.Y.S.2d 922, 624 N.E.2d 1017).

MEMORANDUM BY THE COURT.

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