People v. Bieniek

Appellate Division of the Supreme Court of New York

People v. Bieniek

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

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

DecidedSeptember 28, 1979

StatusPublished

This text of 71 A.D.2d 1059 (People v. Bieniek) 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. Bieniek, 71 A.D.2d 1059, 420 N.Y.S.2d 813, 1979 N.Y. App. Div. LEXIS 13448 (N.Y. Ct. App. 1979).

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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 [1060]*1060any 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.

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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 [1060]*1060any 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.

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Bluebook (online)

71 A.D.2d 1059, 420 N.Y.S.2d 813, 1979 N.Y. App. Div. LEXIS 13448, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-bieniek-nyappdiv-1979.

Opinion

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