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Article 710 - NY Criminal Procedure Law
MOTION TO SUPPRESS EVIDENCE
S 710.10 Motion to suppress evidence; definitions of terms.
As used in this article, the following terms have the following
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
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
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
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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