Appeal from a judgment of the Justice Court of the Town of Southold, Suffolk County (Rudolph H. Bruer, J.), rendered December 14, 2007. The judgment convicted defendant, upon a jury verdict, of criminal trespass in the second degree. The appeal brings up for review, among other things, an order of the same court rendered June 30, 2006 denying, without a hearing, defendant's omnibus motion.

ORDERED that so much of the order rendered June 30, 2006 as denied, without a hearing, the branches of defendant's omnibus motion seeking the suppression of evidence is vacated and the matter is remitted to the Justice Court for determination on the merits, following such hearings as may be warranted, of those branches of defendant's omnibus motion seeking the suppression of evidence, and for a report, and the appeal is held in abeyance in the interim. The Justice Court is to file its report with all convenient speed.

Defendant filed an omnibus motion seeking, among other things, the holding of Mapp/Dunaway and Huntley hearings. The Justice Court denied the omnibus motion in its entirety, premising the denial on a finding that the motion was untimely because it was made more than 45 days after arraignment (see CPL 255.20 [1]). As the People concede, the denial of the motion on this ground was error. Under CPL 255.20 (1), a pretrial motion may alternatively be made "within such additional time as the court may fix upon application of the defendant made prior to entry of judgment." Here, the Justice Court set a motion schedule not opposed by the People, and defense counsel's filing of the omnibus motion was in compliance with the schedule.

The alternative grounds advanced by the People for affirmance of the Justice Court's decision insofar as it denied the branches of defendant's omnibus motion seeking to suppress evidence are not properly before the court in the current procedural posture of the case (see CPL [*2]470.15 [1]; People v LaFontaine, 92 NY2d 470, 474 [1998]; People v Jones, 39 AD3d 1169, 1171-1172 [2007]).

Accordingly, we vacate so much of the Justice Court's order as denied, without a hearing, the branches of defendant's omnibus motion seeking the suppression of evidence, hold the appeal in abeyance and remit the matter to the Justice Court to determine on the merits, following such hearings as may be warranted, those branches of defendant's omnibus motion seeking to suppress evidence (see LaFontaine at 474-475; Jones at 1172]), and to file a report with this court with all convenient speed. We pass upon no other issues at this time.

Tanenbaum, J.P., Molia and Iannacci, JJ., concur.
Decision Date: December 03, 2009