People v. McCaskey

CourtNew York Supreme Court Appellate Division
Citation46 A.D.2d 692,360 N.Y.S.2d 270
Decision Date28 October 1974
PartiesThe PEOPLE, etc., Appellant, v. Donald McCASKEY, Respondent.

Page 270

360 N.Y.S.2d 270
46 A.D.2d 692
The PEOPLE, etc., Appellant,
v.
Donald McCASKEY, Respondent.
Supreme Court, Appellate Division, Second Department.
Oct. 28, 1974.

Page 271

Henry G. Wenzel, III, Dist. Atty., Riverhead (James J. Cruise, Jr., Riverhead, of counsel), for appellant.

John F. Middlemiss, Jr., Riverhead (Leon J. Kesner and Wolodymyr R. Sulzynsky, of counsel), for respondent.

Before HOPKINS, Acting P.J., and MARTUSCELLO, COHALAN, CHRIST and MUNDER, JJ.

MEMORANDUM BY THE COURT.

Appeal by the People from an order of the Supreme Court, Suffolk County, dated October 25, 1972, which, upon reconsideration, adhered to a prior determination contained in an order dated September 7, 1972 granting a motion to suppress the use of a .38 caliber revolver in evidence.

Order reversed, on the law and the facts, defendant's motion to suppress denied and order of September 7, 1972 vacated.

Although the October 25th order purports to deny the People's request for reconsideration of the prior order, and, as such, would not be appealable, the record indicates that in fact the court did reconsider the prior order and adhered to the original determination. In this regard we note that in seeking reconsideration the People's supporting papers included a request for alternative relief which had not been advanced on the prior motion, viz., that a hearing be held. Also, it appears that on the renewed motion the court considered for the first time that defendant had initially been placed under arrest for alleged violation of section 270.00 of the Penal Law (unlawfully dealing with fireworks). It was that arrest which gave the right to further search the automobile. The revolver found during the course

Page 272

of the further search provided the basis for defendant's indictment under section 265.05 of the Penal Law, the section referred to by the court in its decision on the original motion. We conclude that the October 25th order is appealable and that the People's appeal therefrom is timely.

The order should be reversed. The revolver was found in an arm rest in the front seat of defendant's automobile. Defendant had been arrested only moments before for alleged unlawful dealing with fireworks, a class B misdemeanor. He had been seen by a police officer apparently selling items from the open trunk of his automobile. Among the items in open view was a starter's pistol and blank cartridges. The immediate search of the automobile which produced the...

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3 practice notes
  • People v. Key
    • United States
    • United States State Supreme Court (New York)
    • March 22, 1976
    ...The orders were superseded by the order granting reargument (People v. Saddler, 38 A.D.2d 964, 331 N.Y.S.2d 705; see People v. McCaskey, 46 A.D.2d 692, 360 N.Y.S.2d On July 24, 1974 defendant was charged with operating a motor vehicle with more than .10 of one percentum by weight of alcohol......
  • People v. Pacella
    • United States
    • New York Supreme Court Appellate Division
    • February 28, 1975
    ...incident to a valid custodial arrest (see People v. Weintraub, 35 N.Y.2d 351, 361 N.Y.S.2d 897, 320 N.E.2d 636; People v. McCaskey, 46 A.D.2d 692, 360 N.Y.S.2d 270). The seizure of the remaining items not set forth in the search warrant did not vitiate the valid seizure of items designated ......
  • People v. McCaskey.
    • United States
    • New York Supreme Court Appellate Division
    • February 26, 1979
    ...People's appeal from an order suppressing a weapon found in the defendant's car. The People prevailed on the appeal (People v. McCaskey, 46 A.D.2d 692, 360 N.Y.S.2d 270). That appeal was decided by this court in October, 1974. After winning, the prosecution did nothing to bring the case to ......
3 cases
  • People v. Key
    • United States
    • United States State Supreme Court (New York)
    • March 22, 1976
    ...The orders were superseded by the order granting reargument (People v. Saddler, 38 A.D.2d 964, 331 N.Y.S.2d 705; see People v. McCaskey, 46 A.D.2d 692, 360 N.Y.S.2d On July 24, 1974 defendant was charged with operating a motor vehicle with more than .10 of one percentum by weight of alcohol......
  • People v. Pacella
    • United States
    • New York Supreme Court Appellate Division
    • February 28, 1975
    ...incident to a valid custodial arrest (see People v. Weintraub, 35 N.Y.2d 351, 361 N.Y.S.2d 897, 320 N.E.2d 636; People v. McCaskey, 46 A.D.2d 692, 360 N.Y.S.2d 270). The seizure of the remaining items not set forth in the search warrant did not vitiate the valid seizure of items designated ......
  • People v. McCaskey.
    • United States
    • New York Supreme Court Appellate Division
    • February 26, 1979
    ...People's appeal from an order suppressing a weapon found in the defendant's car. The People prevailed on the appeal (People v. McCaskey, 46 A.D.2d 692, 360 N.Y.S.2d 270). That appeal was decided by this court in October, 1974. After winning, the prosecution did nothing to bring the case to ......

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