Motion to suppress evidence; procedure

§ 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.