People v. Allen

• Decision Date: 15 March 1965
• Citation: 257 N.Y.S.2d 757,45 Misc.2d 739
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Grandvillierudtl ALLEN, Defendant.
• Court: New York Supreme Court

Page 757

257 N.Y.S.2d 757

45 Misc.2d 739

The PEOPLE of the State of New York, Plaintiff, v. Grandvillierudtl ALLEN, Defendant.

Supreme Court, Criminal Term, Kings County, Part I.

March 15, 1965.

Aaron E. Koota, Dist. Atty., Kings County, by Ira London, Brooklyn, of counsel, for the People.

Anthony F. Marra, by Charles Hynes, New York City, of counsel, on the motion.

J. IRWIN SHAPIRO, Justice.

This is a motion by the defendant based solely upon the affidavit of his assigned counsel for an order granting suppression of a gun.

Counsel's affidavit states:

'This defendant was represented by retained counsel in the Criminal Court and at the time he was indicted. We were not assigned to represent him until January 27, 1965. This case is now on the reserve calendar of Part V. In preparing the case for trial, the defendant told me for the first time that he was searched before his arrest and found to have a gun in his pocket. At the time he was searched, the police officers had no search warrant, no warrant of arrest; nor did they have probable cause to believe that this defendant had committed a felony. It is this gun which this defendant seeks to suppress.'

The practice on applications for suppression has been for the District Attorney to consent to a hearing where the moving papers are evidentially sufficient to raise an issue of fact for court determination. He opposes this application solely on the ground that '[a] hearing on a motion to suppress is not granted as a matter of course', People v. Cangione, 33 Misc.2d 23, 26, 224 N.Y.S.2d 549, 553, and that the affidavit of an attorney, who has no knowledge of the facts, cannot create an issue sufficient to warrant the ordering of a hearing.

In People v. Lombardi, 18 A.D.2d 177, 239 N.Y.S.2d 161, affd. 13 N.Y.2d 1014, 245 N.Y.S.2d 595, 195 N.E.2d 306 and again in People v. Entrialgo, 19 A.D.2d 509, 245 N.Y.S.2d 850, affd. 14 N.Y.2d 733, 250 N.Y.S.2d 293, 199 N.E.2d 384, the Appellate Division unequivocally stated that the burden of proof to warrant a suppression (except in cases where entry was claimed to have been obtained by waiver or consent) was upon the defendant.

In Lombardi the Appellate Division said (pp. 180-181, 239 N.Y.S.2d p. 164):

'Since the motion to suppress is relatively novel in our practice, having its origin as a result of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, we think it appropriate to delineate the procedure which should be pursued in the consideration of such a motion. * * * Ordinarily, the burden of proof rests on the defendant to sustain the claim of illegal search and seizure upon a motion to suppress (Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.E.2d 307; United States v. O'Leary, D.C., 201 F.Supp. 926, 928).'

In a footnote to the quotation above set forth the court said:

'An exception to this rule exists when the prosecution contends that the search was made following consent or waiver by the defendant (Channel v. United States, 285 F.2d 217, 219-220 [9th Cir.]; United States v. Rutheiser, D.C., 203 F.Supp. 891, 892); the burden of proof of such consent or waiver lies on the prosecution.'

A new suppression hearing was thereupon ordered to be conducted 'in accordance with this opinion.' The unanimous affirmance in the Court of Appeals was without opinion.

After Lombardi came Entrialgo, in which the Criminal Term of the Supreme Court granted suppression on the ground among others that the People had failed to sustain the burden of establishing the propriety of the search and seizure. In reversing and ordering a new hearing the Appellate Division said (pp. 510-511, 245 N.Y.S.2d p. 852):

'At the hearing the court also stated that the burden of proof on the issue of unreasonable search and seizure was upon the People. The rule is to the contrary, i. e.: on a motion to suppress evidence the burden is on the defendant to sustain his claim of illegal search and seizure (People v. Lombardi, 18 A.D.2d 177, 181, 239 N.Y.S.2d 161, 165, affd. 13 N.Y.2d 1014, 245 N.Y.S.2d 595, 195 N.E.2d 306, dec. Nov. 21, 1963).'

Again the Court of Appeals affirmed without opinion (Fuld, J., dissenting). Thus in both Lombardi and Entrialgo a new hearing was ordered with the burden of establishing the right to the claimed suppression being placed upon the defendant. Ordinarily a no-opinion affirmance by the Court of Appeals merely indicates its approval of the result reached by the Appellate Division and not necessarily its concurrence with the language or the reasoning of the opinion below (People ex rel. Palmer v. Travis, 223 N.Y. 150, 156, 119 N.E. 437, 439; Rogers v. Decker, 131 N.Y. 490, 493, 30 N.E. 571). However in both Lombardi and Entrialgo, the Court of Appeals by its affirmance, approved the order of the Appellate Division which placed the burden of proof at the new hearing upon the defendant. It is inconceivable that under such circumstances the Court of Appeals would have affirmed the direction for a new hearing knowing that thereat, perforce the determination of the Appellate Division, the burden of proof would be placed upon the defendant unless by its affirmance it meant not only to approve the direction for a new hearing, but also the manner in which that hearing was to be conducted. The principal issue litigated in the Appellate Division was the question of the burden of proof and it has been held that in such a case a no-opinion affirmance 'does constitute an approval of the determination made of essential issues.' (People ex rel. Lozzi v. Fay, 6 A.D.2d 18, 21, 175 N.Y.S.2d 236, 239). To believe that the Court of Appeals when it affirmed the determination in Lombardi and Entrialgo authorized the new hearings to be conducted upon a theory erroneously enunciated by the Appellate Division as to where the burden of proof was, would necessitate a finding that the court was permitting an exercise in futility.

Furthermore, in the briefs submitted to the Court of Appeals in Entrialgo the burden of proof question was explicitly raised and explored by both sides. Point IV of the District Attorney's brief is headed 'On a Motion to Suppress, the Defendant Has the Burden of Proving Unreasonable Search and Seizure.' The defendant in an effort to obtain the reinstatement of the suppression ordered by the Criminal Term, had a special point in his brief, (Point II) headed 'The Appellate Division Erred in Holding that the Trial Court Erroneously Stated the Burden of Proof.'

Despite the foregoing, we now find that what was believed to be a clear-cut and definitive determination of where the burden of proof is in suppression hearings was a misconception, and that the law is in fact directly contrary to the holdings in Lombardi and Entrialgo (People v. Malinsky, 15 N.Y.2d 86, 255 N.Y.S.2d 850, 204 N.E.2d 188). When Malinsky was before me, I directed a suppression hearing 'solely for the purpose of determining whether the search and seizure were made as an incident to a lawful arrest' (36 Misc.2d 204, 207, 232 N.Y.S.2d 843, 847), and subsequently, as a trier of the facts, I found the defendants guilty. However, the suppression hearing, preceding the trial, was conducted by another Justice. The Appellate Division affirmed when Malinsky came before it. (20 A.D.2d 672, 246 N.Y.S.2d 884.)

However, the Court of Appeals withheld determination of the principal appeal and remitted the case to the hearing court 'for a further hearing on the motion to suppress,' (p. 96, 255 N.Y.S.2d p. 861, 204 N.E.2d p. 195) on the ground that the 'judge presiding at the second hearing [the suppression hearing] committed error when he ruled, first, that the prosecution was not required to disclose the identity of the police informer and, second, that the defendants were not entitled to inspect the notes made by Sullivan [the police officer]' (p. 90, 255 N.Y.S.2d p. 855, 204 N.E.2d p. 191).

Nowhere in the body of the Malinsky opinion is there any indication or even intimation that the court had decided to change its apparent endorsement of the rule laid down in Lombardi and Entrialgo that 'on a motion to suppress evidence the burden is on the defendant to sustain his claim of illegal search and seizure.' However, in a footnote referring to the new hearing being ordered (footnote 2), the following appears:

'The People have the burden of showing probable cause both in obtaining a search warrant and in sustaining the legality of a search made, without a warrant, as incident to an arrest (see People v. Gary, 14 N.Y.2d 730, 250 N.Y.S.2d 75, 199 N.E.2d 171, cert. den. 379 U.S. 937, 85 S.Ct. 340 (13 L.Ed.2d 347) [1960]; see, also, Wong Sun v. United States, 371 U.S. 471, 479-480, 83 S.Ct. 407, 9 L.Ed.2d 441; United States v. Rivera, 2 Cir., 321 F.2d 704, 708; Cervantes v. United States, 9 Cir., 263 F.2d 800, 805.)'

For present purposes, since no search warrant is involved, the footnote, so far as here applicable, determines that '[t]he People have the burden of showing probable cause * * * in sustaining the legality of a search made, without a warrant, as incident to an arrest.'

The only New York case cited as authority for that statement is People v. Gary, 14 N.Y.2d 730, 250 N.Y.S.2d 75, 199 N.E.2d 171, cert. den. 379 U.S. 937, 85 S.Ct. 340, 13 L.Ed.2d 347. With great deference and utmost humility, I submit that the Gary case is not an authority for the newly enunciated rule. I tried the Gary case and, in the course of a voir dire suppression hearing held during the trial (the case was tried before the adoption of the suppression statute, but after Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081), counsel for the defendant urged that the police officer was 'no more worthy of belief than Mr. Gary' the defendant. When I pointed out that a so-called disinterested witness put on the witness stand by defendant sustained the police officer's version of the search, counsel responded by saying that 'he doesn't appear to be any more...