People ex rel. Devine v. New York State Board

68 A.D.2d 867, 414 N.Y.S.2d 1005, 1979 N.Y. App. Div. LEXIS 11086

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 29, 1979
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County, entered on or about August 24, 1978, sustaining a writ of habeas corpus, unanimously reversed, on the law, and the writ dismissed, without costs or disbursements. Thomas Devine, while on parole, was arrested and subsequently indicted for the crimes of murder in the second degree and criminal possession of a weapon. On May 31, 1978, a hearing on the defendant’s motion to suppress physical evidence (a gun) and statements of the defendant Devine was held before Justice Richard Lane, and the motion was granted. On July 21, 1978, a preliminary parole-violation proceeding was held at which the only evidence adduced was the gun directed to be suppressed by Justice Richard Lane. The relator, Devine, objected to the introduction of that evidence. On the basis of that evidence, Devine was held for a further hearing. Devine applied for relief in Supreme Court, and on August 24, 1978 Justice Cohen sustained relator’s writ of habeas corpus on the ground that the suppressed evidence inadmissible at a criminal trial was equally inadmissible at a parole-revocation hearing. We would reverse and dismiss the writ. On January 6, 1979, this court reversed the order of Justice Richard Lane and denied Devine’s motion to suppress evidence (People v Devine, 66 AD2d 244). Since this removed the only objection to the introduction of the evidence adduced at the preliminary parole-revocation proceeding, no basis for sustaining the writ exists and it must be dismissed. Concur—Kupferman, J. P., Sandler, Sullivan, Lane and Bloom, JJ.