Appellate Division: Second Judicial Department

M293824

AFA/

VALERIE BRATHWAITE NELSON, J.P.

LARA J. GENOVESI

DEBORAH A. DOWLING

HELEN VOUTSINAS, JJ.

2019-09461 The People, etc., respondent, v Leon Howell, etc., appellant. (Ind. No. 801/2017)

DECISION & ORDER ON MOTION

Appeal from a judgment of the Supreme Court, Kings County, rendered July 22, 2019. By decision and order of this Court dated December 28, 2022, the matter was remitted to the Supreme Court, Kings County, for a new hearing and determination of that branch of the defendant's omnibus motion which was to suppress physical evidence, and thereafter a report to this Court advising it of the new determination. The appeal was held in abeyance pending receipt of the report from the Supreme Court, Kings County. The Supreme Court has now filed its report.

On the Court's own motion, it is

ORDERED that the matter is again remitted to the Supreme Court, Kings County, for issuance of a new report, forthwith, which advises this Court of the new determination of that branch of the defendant's omnibus motion which was to suppress physical evidence; the Supreme Court, Kings County, shall file its report to this Court with all convenient speed; and it is further,

ORDERED that the appeal shall continue to be held in abeyance pending receipt of the Supreme Court's new report.

The decision and order of this Court dated December 28, 2022, remitted the matter to the Supreme Court for a new hearing and determination of that branch of the defendant's omnibus motion which was to suppress physical evidence, and thereafter a report to this Court advising it of the new determination. Upon remittitur, the Supreme Court held the new hearing, but it erroneously stated in its subsequent report that it was limited to determining "the narrow issue of whether the search of the defendant's jacket was incident to his arrest." On this basis, the Supreme Court did not review and consider the People's contention, raised at the hearing in response to the defendant's arguments, that the defendant has no standing to challenge the search of the jacket. Contrary to this Court's directives on remittitur, the Supreme Court failed to determine that branch of the motion which was to suppress the physical evidence, and limited itself to making a finding on a "narrow issue," without considering all arguments raised by the parties at the hearing. Accordingly, we must again remit the matter to the Supreme Court, Kings County, for the issuance of a new report which advises this Court of the Supreme Court's determination of that branch of the defendant's omnibus motion which was to suppress physical evidence, upon consideration and review of all arguments raised by the parties at the hearing that was previously held on remittitur.

BRATHWAITE NELSON, J.P., GENOVESI, DOWLING and VOUTSINAS, JJ., concur.

ENTER:

Darrell M. Joseph

Acting Clerk of the Court