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Article 710 - NY Criminal Procedure Law

MOTION TO SUPPRESS EVIDENCE

Section Description
710.10Motion to suppress evidence; definitions of terms.
710.20Motion to suppress evidence; in general; grounds for.
710.30Motion to suppress evidence; notice to defendant of intention to offer evidence.
710.40Motion to suppress evidence; when made and determined.
710.50Motion to suppress evidence; in what courts made.
710.60Motion to suppress evidence; procedure.
710.70Motion to suppress evidence; orders of suppression; effects of orders and of failure to make motion.
 S 710.10 Motion to suppress evidence; definitions of terms.
  As used in this article, the following terms have the following
meanings:
  1.  "Defendant" means a person who has been charged by an accusatory
instrument with the commission of an offense.
  2.  "Evidence," when referring to matter in the possession of or
available to a prosecutor, means any tangible property or potential
testimony which may be offered in evidence in a criminal action.
  3.  "Potential testimony" means information or factual knowledge of a
person who is or may be available as a witness.
  4.  "Eavesdropping" means "wiretapping", "mechanical overhearing of a
conversation," or "intercepting or accessing of an electronic
communication", as those terms are defined in section 250.00 of the
penal law.
  5.  "Aggrieved."  An "aggrieved person" includes, but is in no wise
limited to, an "aggrieved person" as defined in subdivision two of
section forty-five hundred six of the civil practice law and rules.
  6.  "Video surveillance" has the meaning given to that term by section
700.05 of this chapter.
  7. "Pen register" and "trap and trace device" have the meanings given
to those terms by subdivisions one and two respectively of section
705.00 of this chapter.

S 710.20 Motion to suppress evidence; in general; grounds for.
    Upon  motion  of  a  defendant  who  (a)  is  aggrieved by unlawful or
  improper acquisition of evidence and has  reasonable  cause  to  believe
  that such may be offered against him in a criminal action, or (b) claims
  that  improper  identification testimony may be offered against him in a
  criminal action, a court may, under  circumstances  prescribed  in  this
  article,  order  that  such  evidence be suppressed or excluded upon the
  ground that it:
    1.  Consists of tangible property obtained by  means  of  an  unlawful
  search  and seizure under circumstances precluding admissibility thereof
  in a criminal action against such defendant; or
    2.  Consists of a record or potential testimony reciting or describing
  declarations,  conversations,   or   other   communications   overheard,
  intercepted,  accessed,  or  recorded  by  means  of  eavesdropping,  or
  observations  made  by  means  of  video  surveillance,  obtained  under
  circumstances  precluding  admissibility  thereof  in  a criminal action
  against such defendant; or
    3.  Consists of a record or potential testimony reciting or describing
  a statement of such defendant involuntarily made, within the meaning  of
  section 60.45; or
    4.    Was  obtained as a result of other evidence obtained in a manner
  described in subdivisions one, two and three; or
    5. Consists of a chemical test of the defendant's  blood  administered
  in  violation  of  the provisions of subdivision three of section eleven
  hundred ninety-four of the vehicle and traffic law, subdivision eight of
  section forty-nine-a of the navigation law, subdivision seven of section
  25.24 of the parks, recreation and historic  preservation  law,  or  any
  other applicable law; or
    6.    Consists  of potential testimony regarding an observation of the
  defendant either at the time or place of the commission of  the  offense
  or  upon  some  other  occasion  relevant  to  the case, which potential
  testimony would not be admissible upon the  prospective  trial  of  such
  charge  owing  to  an  improperly  made  previous  identification of the
  defendant by the prospective witness.
    7. Consists of information obtained by means of a pen register or trap
  and trace device installed or used in violation  of  the  provisions  of
  article seven hundred five of this chapter.

S 710.30 Motion to suppress evidence; notice to defendant of intention
              to offer evidence.
   1.  Whenever the people intend to offer at a trial (a) evidence  of  a
  statement  made  by  a defendant to a public servant, which statement if
  involuntarily made would render the evidence thereof  suppressible  upon
  motion pursuant to subdivision three of section 710.20, or (b) testimony
  regarding an observation of the defendant either at the time or place of
  the  commission  of  the offense or upon some other occasion relevant to
  the case, to be given by a witness who has previously identified him  as
  such,  they  must  serve  upon the defendant a notice of such intention,
  specifying the evidence intended to be offered.
    2.  Such notice must be served within fifteen days  after  arraignment
  and  before  trial, and upon such service the defendant must be accorded
  reasonable opportunity to move before trial, pursuant to subdivision one
  of section 710.40, to suppress the specified evidence.   For good  cause
  shown,  however,  the  court may permit the people to serve such notice,
  thereafter and in such case it  must  accord  the  defendant  reasonable
  opportunity thereafter to make a suppression motion.
    3.  In the absence of service of notice upon a defendant as prescribed
  in  this section, no evidence of a kind specified in subdivision one may
  be received against him upon trial unless he has, despite  the  lack  of
  such  notice,  moved  to suppress such evidence and such motion has been
  denied and the evidence thereby rendered  admissible  as  prescribed  in
  subdivision two of section 710.70.

S 710.40 Motion to suppress evidence; when made and determined.
   1.   A motion to suppress evidence must be made after the commencement
  of the criminal action in which such evidence is allegedly about  to  be
  offered,  and,  except  as  otherwise  provided in section 710.30 and in
  subdivision two of this section, it  must  be  made  within  the  period
  provided in subdivision one of section 255.20.
    2.    The  motion  may  be  made  for  the  first  time when, owing to
  unawareness of facts constituting the basis thereof or to other factors,
  the defendant did not have reasonable opportunity  to  make  the  motion
  previously, or when the evidence which he seeks to suppress is of a kind
  specified  in  section  710.30  and  he was not served by the people, as
  provided in said section 710.30, with a pre-trial notice of intention to
  offer such evidence at the trial.
    3.   When the motion is made  before  trial,  the  trial  may  not  be
  commenced until determination of the motion.
    4.    If  after a pre-trial determination and denial of the motion the
  court is satisfied, upon a showing by  the  defendant,  that  additional
  pertinent facts have been discovered by the defendant which he could not
  have  discovered  with  reasonable diligence before the determination of
  the motion, it may permit him to renew the motion before  trial  or,  if
  such  was not possible owing to the time of the discovery of the alleged
  new facts, during trial.

S 710.50 Motion to suppress evidence; in what courts made.
    1.    The particular courts in which motions to suppress evidence must
  be made are as follows:
    (a)   If an indictment is pending in  a  superior  court,  or  if  the
  defendant  has  been  held by a local criminal court for the action of a
  grand jury, the motion must be made in the superior court in which  such
  indictment  is  pending  or  which  impaneled or will impanel such grand
  jury.  If the superior court which will impanel such grand jury  is  the
  supreme court, the motion may, in the alternative, be made in the county
  court of the county in which the action is pending;
    (b)    If  a  currently  undetermined felony complaint is pending in a
  local criminal court, the motion must be  made  in  the  superior  court
  which  would  have trial jurisdiction of the offense or offenses charged
  were an indictment therefor to result;
    (c)   If an information,  a  simplified  information,  a  prosecutor's
  information  or  a  misdemeanor complaint is pending in a local criminal
  court, the motion must be made in such court.
    2.  If after a motion has been made in and determined  by  a  superior
  court  a  local criminal court acquires trial jurisdiction of the action
  by reason of an information, a prosecutor's information or a misdemeanor
  complaint  filed  therewith,  such  superior  court's  determination  is
  binding  upon  such  local criminal court.   If, however, the motion has
  been made in but not yet determined by the superior court at the time of
  the filing of such information, prosecutor's information or  misdemeanor
  complaint,  the  superior  court  may  not determine the motion but must
  refer it to the local criminal court of trial jurisdiction.

S 710.60 Motion to suppress evidence; procedure.
   1.  A motion to suppress evidence made before trial must be in writing
  and upon reasonable notice to the people  and  with  opportunity  to  be
  heard.  The motion papers must state the ground or grounds of the motion
  and must contain sworn allegations of fact, whether of the defendant  or
  of another person or persons, supporting such grounds.  Such allegations
  may be based upon personal knowledge of the deponent or upon information
  and  belief,  provided  that  in  the  latter  event the sources of such
  information and the grounds of such belief are stated.  The  people  may
  file with the court, and in such case must serve a copy thereof upon the
  defendant  or  his counsel, an answer denying or admitting any or all of
  the allegations of the moving papers.
    2. The court must summarily grant the motion if:
    (a) The motion papers comply with the requirements of subdivision  one
  and  the  people  concede the truth of allegations of fact therein which
  support the motion; or
    (b) The people stipulate that the evidence  sought  to  be  suppressed
  will  not  be  offered  in evidence in any criminal action or proceeding
  against the defendant.
    3. The court may summarily deny the motion if:
    (a) The motion papers do not allege a ground constituting legal  basis
  for the motion; or
    (b)  The  sworn  allegations of fact do not as a matter of law support
  the ground alleged; except that this paragraph does not apply where  the
  motion is based upon the ground specified in subdivision three or six of
  section 710.20.
     4. If the court does not determine the motion pursuant to subdivisions
  two  or  three,  it  must  conduct  a  hearing and make findings of fact
  essential to the  determination  thereof.  All  persons  giving  factual
  information at such hearing must testify under oath, except that unsworn
  evidence  pursuant  to  subdivision two of section 60.20 of this chapter
  may also be received. Upon such hearing, hearsay evidence is  admissible
  to establish any material fact.
    5.  A  motion to suppress evidence made during trial may be in writing
  and may be litigated and determined on the basis  of  motion  papers  as
  provided  in  subdivisions one through four, or it may, instead, be made
  orally in open court.  In  the  latter  event,  the  court  must,  where
  necessary,  also  conduct a hearing as provided in subdivision four, out
  of the presence of the jury if any, and make findings of fact  essential
  to the determination of the motion.
    6.  Regardless  of  whether  a  hearing was conducted, the court, upon
  determining the motion, must set forth on the  record  its  findings  of
  fact, its conclusions of law and the reasons for its determination.

S 710.70 Motion to suppress evidence; orders of suppression; effects of
              orders and of failure to make motion.
   1.   Upon granting a motion to suppress evidence, the court must order
  that the evidence in question be excluded in the criminal action pending
  against the defendant.    When  the  order  is  based  upon  the  ground
  specified  in  subdivision  one  of section 710.20 and excludes tangible
  property unlawfully taken from the defendant's possession, and when such
  property is not otherwise subject to lawful retention,  the  court  may,
  upon  request  of  the  defendant,  further  order that such property be
  restored to him.
    2.  An order finally denying a motion  to  suppress  evidence  may  be
  reviewed   upon  an  appeal  from  an  ensuing  judgment  of  conviction
  notwithstanding the fact that such judgment is entered upon  a  plea  of
  guilty.
    3.  A motion to suppress evidence made pursuant to this article is the
  exclusive  method  of challenging the admissibility of evidence upon the
  grounds specified in section 710.20, and a defendant who does  not  make
  such  a  motion  before or in the course of a criminal action waives his
  right to judicial determination of any such contention.
    Nothing contained in this article, however, precludes a defendant from
  attempting to establish at a  trial  that  evidence  introduced  by  the
  people of a pre-trial statement made by him should be disregarded by the
  jury  or  other trier of the facts on the ground that such statement was
  involuntarily made within the meaning of section 60.45.  Even though the
  issue of the admissibility of such evidence was  not  submitted  to  the
  court,  or  was  determined  adversely to the defendant upon motion, the
  defendant may adduce trial  evidence  and  otherwise  contend  that  the
  statement  was  involuntarily  made.    In the case of a jury trial, the
  court must submit such issue to the jury under instructions to disregard
  such evidence upon a finding that the statement was involuntarily made.

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