Brenon v. State

31 A.D.2d 776, 297 N.Y.S.2d 88, 1969 N.Y. App. Div. LEXIS 4826

Opinion

Judgment unanimously reversed on the law and facts, without costs, and claim dismissed. Memorandum: The trial count erred in holding that the determination of the City Court of Rome suppressing property removed by the officers from claimant’s home was res jtidieata upon it. The extent of the proof required on the suppression hearing differed from that needed in this civil action, and the City Court order was not res judicata, herein (Schindler v. Royal Ins. Co., 258 N. Y. 310, 312-313; Massey v. Meurer, 25 A D 2d 729; Richardson, Evidence [9th ed.], § 369, p. 353). The issue as to whether claimant consented to the entry of the officers into her home and to the removal of the two items of supplies was fully tried, and the court should have determined it. The record shows that the State sustained its burden of proving by a preponderance of the evidence that the claimant did consent and that there was no illegal search and seizure. (Appeal from judgment of Court of Claims in action for damages for illegal search and seizure.) Present — Bastow, P. J., Goldman, Del Vecchio, Marsh and Witmer, JJ.