A. Motion

JurisdictionNew York

A. Motion

A motion to suppress physical evidence must be made as part of the accused's omnibus motion and filed within 45 days of the accused's arraignment. Any testimony by the accused at a hearing cannot be admitted into evidence against the accused at trial. However, they may be used on cross-examination to impeach the accused's credibility if his or her trial testimony differs from the hearing testimony.356

The motion must contain sworn allegations of fact and must allege a sufficient factual basis upon which suppression should be granted.357 General conclusory statements, such as "My client's Fourth Amendment rights were violated," are legal conclusions and will result in a summary denial of a motion to suppress.358 A motion to suppress physical evidence requires competent factual averments in support of it by affidavit or affirmation.359 Defense counsel should be aware that this requirement has the imprimatur of the Court of Appeals.360 In addition, factual averments in supporting affidavits or...

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