Dunaway hearing in New York

2024To obtain a Dunaway hearing, a defendant must allege a sufficient factual basis to demonstrate that there is some material factual dispute that requires resolution by such a hearing. (see People v Mendoza , 82 NY2d 415, 426 [1993].) Here, the defendant has not provided any such basis.

2024To obtain a Dunaway hearing, a defendant must allege a sufficient factual basis to demonstrate that there is some material factual dispute that requires resolution by such a hearing. (see People v Mendoza , 82 NY2d 415, 426 [1993].) Here, the defendant has not provided any such basis.

2025Dunaway/Vandover For a Dunaway hearing in a Vehicle and Traffic Law § 1192 context, "[t]he standard to be followed is that it is more probable than not that defendant is actually impaired" ( People v Vandover , 20 NY3d 235, 239 [2012]).

2025Dunaway/Vandover For a Dunaway hearing in a Vehicle and Traffic Law § 1192 context, "[t]he standard to be followed is that it is more probable than not that defendant is actually impaired" ( People v Vandover , 20 NY3d 235, 239 [2012]).

2022In any event, defendant was not entitled to a Dunaway hearing based on the sparse allegations in support of the omnibus motion, as viewed in light of the specific information provided in the People's voluntary disclosure form ( see People v Jones , 95 NY2d 721, 726-729 [2001]; People v Burch , 59 AD3d 26 , [1st Dept 2009], lv denied 12 NY3d 913 [2009]).

2022In any event, defendant was not entitled to a Dunaway hearing based on the sparse allegations in support of the omnibus motion, as viewed in light of the specific information provided in the People's voluntary disclosure form ( see People v Jones , 95 NY2d 721, 726-729 [2001]; People v Burch , 59 AD3d 26 , [1st Dept 2009], lv denied 12 NY3d 913 [2009]).

2017We also reject defendant’s further contention that defense counsel was ineffective in failing to move for a Dunaway hearing “ ‘where, as here, such [a motion] was potentially futile’ ” (People v Smith, 128 AD3d 1434, 1434-1435 [2015], lv denied 26 NY3d 1011 [2015]; see People v Jackson, 48 AD3d 891, 893-894 [2008], lv denied 10 NY3d 841 [2008]; People v Polanco, 13 AD3d 100 , 101 [2004], lv denied 4 NY3d 802 [2005]).

2017We also reject defendant’s further contention that defense counsel was ineffective in failing to move for a Dunaway hearing “ ‘where, as here, such [a motion] was potentially futile’ ” (People v Smith, 128 AD3d 1434, 1434-1435 [2015], lv denied 26 NY3d 1011 [2015]; see People v Jackson, 48 AD3d 891, 893-894 [2008], lv denied 10 NY3d 841 [2008]; People v Polanco, 13 AD3d 100 , 101 [2004], lv denied 4 NY3d 802 [2005]).

2024A Dunaway hearing is to determine if statements attributed to defendant were the product of an impermissible arrest ( see Dunaway v New York , 442 US 200 [1979]).

2024With respect to defendant's remaining motions, a combined Huntley and Dunaway hearing ( People v Huntley , 15 NY2d 72 [1965]; Dunaway v New York , 442 US 200 [1979]) and a "voluntariness" hearing are ordered.

2017The legality of the arrest depends upon whether, at the time of the arrest, the police had probable cause to believe that defendant committed the crime, a matter that would not have been at issue — and that defendant therefore would not have been entitled to explore — in the Huntley/Wade hearing, dealing with the voluntariness of defendant’s statements and the propriety of the lineup procedures used to identify him (see People v Bryant, 8 NY3d 530 [2007] [remitting the matter for a Mapp/Dunaway hearing, which had been erroneously summarily denied, although the defendant had pleaded guilty befo

2014Accordingly, County Court was permitted to deny the request for a Dunaway hearing (see People v Carota, 93 AD3d 1072, 1076 [2012]; People v Gilmore, 72 AD3d 1191, 1192 [2010]; People v Jenkins, 64 AD3d 993, 994 [2009]; compare People v Bryant, 8 NY3d at 534 ), and we conclude that the denial was not an abuse of discretion. 1 While defendant argues that County Court erred in permitting the People to impeach their own witnesses by questioning those witnesses about any prior criminal convictions, defendant never objected to that line of questioning, thus rendering this issue unpreserved for our r

2025A Dunaway hearing will only be granted when a defendant raises a material issue as to whether some evidence such as physical evidence, a statement, or an identification was obtained pursuant to an unlawful arrest ( see People v Burton , 6 NY3d 584, 587 [2006]).

2025A Dunaway hearing will only be granted when a defendant raises a material issue as to whether some evidence such as physical evidence, a statement, or an identification was obtained pursuant to an unlawful arrest ( see People v Burton , 6 NY3d 584, 587 [2006]).

2024"Under well-established exclusionary rule principles, where police have engaged in unlawful activity—here, by [allegedly] arresting defendant without probable cause—evidence which is a result of the 'exploitation of that illegality' is [*4]subject to suppression as the 'fruit of the poisonous tree' unless one of the recognized exceptions to the exclusionary rule is applicable." People v Small , 110 AD3d 1138, 1140 (3d Dept 2013), quoting Wong Sun v United States , 371 US 471, 488 (1963); see Dunaway v New York , 442 US 200 (1979); People v Huntley , 259 AD2d 843, 845 (3d Dept 1999) (defining a

2024"Under well-established exclusionary rule principles, where police have engaged in unlawful activity—here, by [allegedly] arresting defendant without probable cause—evidence which is a result of the 'exploitation of that illegality' is [*4]subject to suppression as the 'fruit of the poisonous tree' unless one of the recognized exceptions to the exclusionary rule is applicable." People v Small , 110 AD3d 1138, 1140 (3d Dept 2013), quoting Wong Sun v United States , 371 US 471, 488 (1963); see Dunaway v New York , 442 US 200 (1979); People v Huntley , 259 AD2d 843, 845 (3d Dept 1999) (defining a

2019Initially, County Court (Sypniewski, J.) properly denied defendant's motion for a Mapp/Dunaway hearing, "as the motion 'failed to set forth any sworn allegations of fact supporting the grounds for the application'" ( People v Durfey , 170 AD3d 1331 , 1336 [2019], quoting People v Gilmore , 72 AD3d 1191, 1192 [2010]; see People v Mendoza , 82 NY2d 415, 422 [1993]).

2014Accordingly, County Court was permitted to deny the request for a Dunaway hearing (see People v Carota, 93 AD3d 1072, 1076 [2012]; People v Gilmore, 72 AD3d 1191, 1192 [2010]; People v Jenkins, 64 AD3d 993, 994 [2009]; compare People v Bryant, 8 NY3d at 534 ), and we conclude that the denial was not an abuse of discretion. 1 While defendant argues that County Court erred in permitting the People to impeach their own witnesses by questioning those witnesses about any prior criminal convictions, defendant never objected to that line of questioning, thus rendering this issue unpreserved for our r

2004People v. Dodt ( 61 NY2d 408 ) and People v. King ( 274 AD2d 669 [3d Dept.]) are instructive regarding the Dunaway issue.

1999Mindful that the analysis required of a court when determining whether the People have met their burden of demonstrating probable cause for an arrest is essentially the same as that applied when passing on an application for an arrest or search warrant (see, People v Parris, 83 NY2d 342, 346 ; People v Dodt, 61 NY2d 408, 415 ; People v Bouton, 50 NY2d 130, 135 ), my review of the Dunaway hearing compels the conclusion that the nature and quality of the information possessed by the police, while certainly adequate to create a reasonable suspicion of defendant’s involvement in the fires, was ins

2020The evidence at the suppression hearing establishes that no Dunaway hearing was required because defendant's "statement on its face shows probable cause for defendant's arrest, and defendant failed to controvert it" by submitting motion papers addressing the issue ( People v Lopez , 5 NY3d 753, 754 [2005]; see People v Bakerx , 114 AD3d 1244, 1246 [4th Dept 2014], lv denied 22 NY3d 1196 [2014]).

2015The court correctly denied defendant’s motion for a Dunaway hearing on the ground that it was not supported by sufficient factual allegations, given the information available to defendant (see People v Lopez, 5 NY3d 753 [2005]; People v Mendoza, 82 NY2d 415 [1993]).

2017Here, as County Court aptly observed, no sworn allegations of fact were offered in support of defendant’s request; rather, defendant merely asked the court “to determine if in fact the People, and its agents in law enforcement!,] had probable cause to detain, arrest and search defendant and seize tangible property at the time of arrest.” Under these circumstances, County Court did not abuse its discretion in denying defendant’s request for a Dunaway hearing (see id. at 1117 ; compare People v Mabeus, 47 AD3d 1073, 1074-1075 [2008]; People v McNair, 28 AD3d 800, 800-801 [2006]).

2017Here, as County Court aptly observed, no sworn allegations of fact were offered in support of defendant’s request; rather, defendant merely asked the court “to determine if in fact the People, and its agents in law enforcement!,] had probable cause to detain, arrest and search defendant and seize tangible property at the time of arrest.” Under these circumstances, County Court did not abuse its discretion in denying defendant’s request for a Dunaway hearing (see id. at 1117 ; compare People v Mabeus, 47 AD3d 1073, 1074-1075 [2008]; People v McNair, 28 AD3d 800, 800-801 [2006]).

2017We also reject defendant’s further contention that defense counsel was ineffective in failing to move for a Dunaway hearing “ ‘where, as here, such [a motion] was potentially futile’ ” (People v Smith, 128 AD3d 1434, 1434-1435 [2015], lv denied 26 NY3d 1011 [2015]; see People v Jackson, 48 AD3d 891, 893-894 [2008], lv denied 10 NY3d 841 [2008]; People v Polanco, 13 AD3d 100 , 101 [2004], lv denied 4 NY3d 802 [2005]).

2017We also reject defendant’s further contention that defense counsel was ineffective in failing to move for a Dunaway hearing “ ‘where, as here, such [a motion] was potentially futile’ ” (People v Smith, 128 AD3d 1434, 1434-1435 [2015], lv denied 26 NY3d 1011 [2015]; see People v Jackson, 48 AD3d 891, 893-894 [2008], lv denied 10 NY3d 841 [2008]; People v Polanco, 13 AD3d 100 , 101 [2004], lv denied 4 NY3d 802 [2005]).

2014Even assuming, arguendo, that defendant initially made a sufficient motion for a Dunaway hearing merely by mentioning the name of the case in his request for a Huntley hearing (cf. People v Jones, 95 NY2d 721, 725-729 [2001]), we conclude that defendant abandoned that request because he “failed to seek a ruling on those parts of his omnibus motion concerning the alleged [Dunaway] violation ... or to object to the admission of his statements in evidence at trial... on those grounds” (People v Nix, 78 AD3d 1698, 1699 [2010], lv denied 16 NY3d 799 [2011], cert denied 565 US —, 132 S Ct 157 [2011]

2014Even assuming, arguendo, that defendant initially made a sufficient motion for a Dunaway hearing merely by mentioning the name of the case in his request for a Huntley hearing (cf. People v Jones, 95 NY2d 721, 725-729 [2001]), we conclude that defendant abandoned that request because he “failed to seek a ruling on those parts of his omnibus motion concerning the alleged [Dunaway] violation ... or to object to the admission of his statements in evidence at trial... on those grounds” (People v Nix, 78 AD3d 1698, 1699 [2010], lv denied 16 NY3d 799 [2011], cert denied 565 US —, 132 S Ct 157 [2011]

2025For a Vehicle and Traffic Law § 1192 (1) offense, "driving a motor vehicle while there is any alcoholic impairment of the driver's 'ability to operate such [*6]vehicle' would constitute a violation" ( People v Cruz , 48 NY2d 419, 426 [1979]).

2025For a Vehicle and Traffic Law § 1192 (1) offense, "driving a motor vehicle while there is any alcoholic impairment of the driver's 'ability to operate such [*6]vehicle' would constitute a violation" ( People v Cruz , 48 NY2d 419, 426 [1979]).

2024"Under well-established exclusionary rule principles, where police have engaged in unlawful activity—here, by [allegedly] arresting defendant without probable cause—evidence which is a result of the 'exploitation of that illegality' is [*4]subject to suppression as the 'fruit of the poisonous tree' unless one of the recognized exceptions to the exclusionary rule is applicable." People v Small , 110 AD3d 1138, 1140 (3d Dept 2013), quoting Wong Sun v United States , 371 US 471, 488 (1963); see Dunaway v New York , 442 US 200 (1979); People v Huntley , 259 AD2d 843, 845 (3d Dept 1999) (defining a

2024"Under well-established exclusionary rule principles, where police have engaged in unlawful activity—here, by [allegedly] arresting defendant without probable cause—evidence which is a result of the 'exploitation of that illegality' is [*4]subject to suppression as the 'fruit of the poisonous tree' unless one of the recognized exceptions to the exclusionary rule is applicable." People v Small , 110 AD3d 1138, 1140 (3d Dept 2013), quoting Wong Sun v United States , 371 US 471, 488 (1963); see Dunaway v New York , 442 US 200 (1979); People v Huntley , 259 AD2d 843, 845 (3d Dept 1999) (defining a

2014Similarly, neither trial counsel’s failure to properly request a Dunaway hearing (see People v Rivera, 71 NY2d at 709 ; People v Jackson, 48 AD3d 891, 893-894 [2008], lv denied 10 NY3d 841 [2008]) nor counsel’s failure to preserve defendant’s legal sufficiency claim rises to the level of ineffective assistance of counsel (see People v Jones, 101 AD3d 1241 , 1242-1243 [2012], lv denied 21 NY3d 944 [2013]; People v McRobbie, 97 AD3d 970, 972 [2012], lv denied 20 NY3d 934 [2012]), as both motions would likely have been denied on the merits.

2014Similarly, neither trial counsel’s failure to properly request a Dunaway hearing (see People v Rivera, 71 NY2d at 709 ; People v Jackson, 48 AD3d 891, 893-894 [2008], lv denied 10 NY3d 841 [2008]) nor counsel’s failure to preserve defendant’s legal sufficiency claim rises to the level of ineffective assistance of counsel (see People v Jones, 101 AD3d 1241 , 1242-1243 [2012], lv denied 21 NY3d 944 [2013]; People v McRobbie, 97 AD3d 970, 972 [2012], lv denied 20 NY3d 934 [2012]), as both motions would likely have been denied on the merits.

2017Here, as County Court aptly observed, no sworn allegations of fact were offered in support of defendant’s request; rather, defendant merely asked the court “to determine if in fact the People, and its agents in law enforcement!,] had probable cause to detain, arrest and search defendant and seize tangible property at the time of arrest.” Under these circumstances, County Court did not abuse its discretion in denying defendant’s request for a Dunaway hearing (see id. at 1117 ; compare People v Mabeus, 47 AD3d 1073, 1074-1075 [2008]; People v McNair, 28 AD3d 800, 800-801 [2006]).

2017Here, as County Court aptly observed, no sworn allegations of fact were offered in support of defendant’s request; rather, defendant merely asked the court “to determine if in fact the People, and its agents in law enforcement!,] had probable cause to detain, arrest and search defendant and seize tangible property at the time of arrest.” Under these circumstances, County Court did not abuse its discretion in denying defendant’s request for a Dunaway hearing (see id. at 1117 ; compare People v Mabeus, 47 AD3d 1073, 1074-1075 [2008]; People v McNair, 28 AD3d 800, 800-801 [2006]).

2013That is, the People did not prove that the evidence was not acquired by exploiting the illegal arrest but, rather, came about by means “sufficiently distinguishable from [the illegality] to be purged of illegality” (People v Johnson, 66 NY2d 398, 407 [1985]; see Brown v Illinois, 422 US at 603-604 ; People v Borges, 69 NY2d 1031, 1033 [1987]).

2013That is, the People did not prove that the evidence was not acquired by exploiting the illegal arrest but, rather, came about by means “sufficiently distinguishable from [the illegality] to be purged of illegality” (People v Johnson, 66 NY2d 398, 407 [1985]; see Brown v Illinois, 422 US at 603-604 ; People v Borges, 69 NY2d 1031, 1033 [1987]).

2021By acquiescing in the lack of a ruling, the defendant abandoned that application, thereby rendering his present Dunaway claim unpreserved for appellate review ( see CPL 470.05[2]; People v Collier , 146 AD3d 1146, 1147 ; People v Bigelow , 68 AD3d 1127, 1128 ).

2017Nevertheless, by either failing to pursue his application for a Dunaway hearing or alert the court that it had overlooked his request, defendant abandoned such request, thereby rendering unpreserved his appellate contention that the police lacked probable cause to arrest him (see CPL 470.05 [2]; People v Bigelow, 68 AD3d 1127, 1128 [2009], lv denied 14 NY3d 797 [2010]; People v Harley, 253 AD2d 699, 699 [1998], lv denied 92 NY2d 1032 [1998]), and we decline to take corrective action in the interest of justice.

2016Similarly, there is no evidence in the record that the Sheriffs detectives who questioned defendant used any ploy that might constitute a “highly coercive deception] ]” that would justify suppression of his statements (People v Thomas, 22 NY3d 629, 642 [2014]; see People v Moore, 132 AD3d 496, 496-497 [2015]; see generally People v Knapp, 124 AD3d 36 , 41-42 [2014]), and thus defendant was not denied effective assistance of counsel by his trial attorney’s failure to move to suppress his statements on that ground.

2016Similarly, there is no evidence in the record that the Sheriffs detectives who questioned defendant used any ploy that might constitute a “highly coercive deception] ]” that would justify suppression of his statements (People v Thomas, 22 NY3d 629, 642 [2014]; see People v Moore, 132 AD3d 496, 496-497 [2015]; see generally People v Knapp, 124 AD3d 36 , 41-42 [2014]), and thus defendant was not denied effective assistance of counsel by his trial attorney’s failure to move to suppress his statements on that ground.