People v. Bieniek

71 A.D.2d 1059, 420 N.Y.S.2d 813, 1979 N.Y. App. Div. LEXIS 13448

Opinion

Judgment unanimously reversed, on the law and facts, motion to suppress granted and indictment dismissed. Memorandum: Defendant has been convicted of criminal possession of a dangerous weapon, third degree. Upon the prior appeal (People v Bieniek, 60 AD2d 777) we remitted the matter for a Darden hearing (People v Darden, 34 NY2d 177) for the purpose of determining whether defendant’s motion to suppress the revolver seized from his vehicle should be granted because the search and seizure were made without probable cause. An in camera hearing has now been completed and upon reviewing the transcript, we determine that the police acted without probable cause and the motion to suppress should be granted. Since we are reversing the judgment, it is unnecessary to pass upon the several points raised by defendant on this appeal but we note that upon a Darden hearing a defendant is entitled to advance notice of the hearing so that he may be heard on the necessity for in camera proceedings and, if such proceedings are necessary, so that defendant may submit to the Judge any questions he wishes asked of the witnesses (see People v Darden, supra). (Resubmission of appeal from judgment of Erie Supreme Court—criminal possession of a weapon, third degree.) Present—Simons, J. P., Schnepp, Callahan, Doerr and Witmer, JJ.