People v. Sullivan

• Decision Date: 23 April 1963
• Citation: 239 N.Y.S.2d 517,18 A.D.2d 1066
• Parties: The PEOPLE of the State of New York, Respondent, v. Paul SULLIVAN, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 517

239 N.Y.S.2d 517

18 A.D.2d 1066

The PEOPLE of the State of New York, Respondent, v. Paul SULLIVAN, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

April 23, 1963.

A. Unger, New York City, for defendant-appellant.

J. A. Phillips, New York City, for respondent.

Before BREITEL, J. P., and RABIN, EAGER, STEUER and BASTOW, JJ.

PER CURIAM.

Judgment of conviction, on plea of guilty, to possession of a narcotic drug as a misdemeanor in violation of Penal Law, § 1751-a, unanimously affirmed, and appeal from order of trial court denying motion to suppress evidence dismissed as academic. The defendant, brought to trial upon an indictment charging unlawful possession of a narcotic drug as a felony in violation of Penal Law, Section 1751, subd. 3, applied at the opening of the trial to suppress as evidence the narcotics found in his car by police officers who had entered the car without a search warrant. A hearing was held by the trial court on the application and it was denied. Thereupon, the trial of the defendant upon the indictment proceeded before the court and jury, and following the completion of the testimony of one of the officers, the defendant withdrew his plea of not guilty and voluntarily pleaded guilty to possessing a narcotic drug as a misdemeanor, to cover the indictment. The plea was accepted and the defendant duly convicted. The trial here was held in February, 1962, and defendant sentenced and convicted on April 5, 1962. Section 813-c of the Code of Criminal Procedure, effective April 29, 1962, provides that, if a motion to suppress evidence is denied, it may be 'reviewed on appeal from a judgment of conviction notwithstanding the fact that such judgment of conviction is predicated upon a plea of guilty.' These provisions being remedial and procedural in nature and there being nothing in or accompanying the enactment indicating that the provisions were intended to be limited in their application to future convictions, they are to be applied to this appeal which was taken after the effective date of the statute. (McKinney's Cons.Laws of N. Y., Book 1, Statutes, §§ 54, 55; cf. People v. Konono, 9 N.Y.2d 924, 217 N.Y.S.2d 92, 176 N.E.2d 101.) It appears, however, that the review here of the denial of the motion to suppress the evidence is sought solely as a basis to upset the conviction on the plea of guilty. While there may have been some question as to the sufficiency of the evidence presented on the preliminary hearing, to show...