People v. Barry

Appellate Division of the Supreme Court of New York

People v. Barry

24 A.D.2d 638, 262 N.Y.S.2d 712, 1965 N.Y. App. Div. LEXIS 3498

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 19, 1965

StatusPublished

This text of 24 A.D.2d 638 (People v. Barry) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Barry, 24 A.D.2d 638, 262 N.Y.S.2d 712, 1965 N.Y. App. Div. LEXIS 3498 (N.Y. Ct. App. 1965).

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Opinion

Appeal by defendant from a judgment of the Supreme Court, Queens County, entered November 22, 1963 after a jury trial, convicting him of felonious possession of a narcotic drug (Penal Law, § 1751), and imposing sentence. Action remitted to the trial court for further proceedings in accordance with this decision. In the interim, the pending appeal in this court will be held in abeyance. The remission is for the purpose of holding a hearing and making findings of fact upon the issues raised by the defendant’s motion to suppress evidence. In our opinion, such motion was improperly denied without a hearing and without findings (People v. Malinsky, 15 N Y 2d 86; People v. Lombardi, 18 A D 2d 177, affd. 13 N Y 2d 1014; cf. People v. Mercado, 24 A D 2d 609; cf. People v. Walton, 24 A D 2d 640). The hearing should be held before the court without a jury; and the subsequent procedure should be in accord with the procedure prescribed in People v. Bischone (24 A D 2d 575) and in People v. Walton (24 A D 2d 640, supra). Ughetta, Acting P. J., Brennan, Rabin, Hopkins and Benjamin, JJ., concur.

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Appeal by defendant from a judgment of the Supreme Court, Queens County, entered November 22, 1963 after a jury trial, convicting him of felonious possession of a narcotic drug (Penal Law, § 1751), and imposing sentence. Action remitted to the trial court for further proceedings in accordance with this decision. In the interim, the pending appeal in this court will be held in abeyance. The remission is for the purpose of holding a hearing and making findings of fact upon the issues raised by the defendant’s motion to suppress evidence. In our opinion, such motion was improperly denied without a hearing and without findings (People v. Malinsky, 15 N Y 2d 86; People v. Lombardi, 18 A D 2d 177, affd. 13 N Y 2d 1014; cf. People v. Mercado, 24 A D 2d 609; cf. People v. Walton, 24 A D 2d 640). The hearing should be held before the court without a jury; and the subsequent procedure should be in accord with the procedure prescribed in People v. Bischone (24 A D 2d 575) and in People v. Walton (24 A D 2d 640, supra). Ughetta, Acting P. J., Brennan, Rabin, Hopkins and Benjamin, JJ., concur.

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Bluebook (online)

24 A.D.2d 638, 262 N.Y.S.2d 712, 1965 N.Y. App. Div. LEXIS 3498, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-barry-nyappdiv-1965.