People v. Ostolaza

19 A.D.2d 871, 244 N.Y.S.2d 96, 1963 N.Y. App. Div. LEXIS 2903

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 1963
• Status: Published

Opinion

The determination of this appeal is held in abeyance, by unanimous vote, so that defendant may move promptly in the Supreme Court to suppress the evidence allegedly seized illegally, and so that the Supreme Court may hold a hearing without a jury to determine whether the search and seizure were incidental to a lawful arrest {People v. Coffey, 11 N Y 2d 142, 148). Although counsel for defendant originally made no objection to the admission into evidence of the three packages of heroin and other objects, he did preserve his right to review of the constitutional issue on appeal by cross-examining the police officers extensively as to the absence of a search warrant, the manner of entry into the room where the contraband was first found, the extent of the search, the role played by an informer prior to the arrest and other related circumstances bearing upon the legality of the search,-seizure and arrest {People v. O’Neill, 11 N Y 2d 148; of. People v. Frióla, 11 N Y 2d 157). Concur — Botein, P. J., Breitel, Rabin, 'Stevens and Eager, JJ.