People v. Gonzalez

• Decision Date: 09 February 1982
• Parties: , 433 N.E.2d 1266 The PEOPLE of the State of New York, Respondent, v. Benjamin GONZALEZ, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 18

449 N.Y.S.2d 18

55 N.Y.2d 887, 433 N.E.2d 1266

The PEOPLE of the State of New York, Respondent, v. Benjamin GONZALEZ, Appellant.

Court of Appeals of New York.

Feb. 9, 1982.

Eleanor Jackson Piel, New York City, for appellant.

Robert M. Morgenthau, Dist. Atty., New York City, (William J. Comiskey, and Mark R. Dwyer, New York City, of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 78 A.D.2d 779, 435 N.Y.S.2d 201, should be affirmed.

Defendant's motion to suppress was predicated on two grounds, to wit: (1) the lack of probable cause to sustain his arrest; and (2) the arresting officers' failure to inform defendant of their purpose and authority as required by CPL 140.15 (subd. 2). At no time before the suppression court did defendant raise the issue that the weapon should have been suppressed because his arrest was effected in his home without a warrant and in the absence of exigent circumstances. (See Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639.) By not raising that particular issue within the context of his initial motion to suppress, defendant has failed to preserve it for appellate review. (People v. Martin, 50 N.Y.2d 1029, 431 N.Y.S.2d 689, 409 N.E.2d 1363.) Therefore, we need not reach the question whether the rule announced by the Supreme Court in Payton v. New York (supra ) should be given retroactive effect so as to invalidate arrests made prior to the date of that decision.

We have considered defendant's remaining contention and have found it to be without merit.

COOKE, C. J., and JASEN, GABRIELLI, WACHTLER, FUCHSBERG and MEYER, JJ., concur.

JONES, J., taking no part.

Order affirmed in a memorandum.