People v. Surretsky

• Decision Date: 07 October 1971
• Citation: 67 Misc.2d 966,325 N.Y.S.2d 31
• Parties: The PEOPLE of the State of New York v. Robert SURRETSKY et al., Defendant.
• Court: New York Supreme Court

Page 31

325 N.Y.S.2d 31

67 Misc.2d 966

The PEOPLE of the State of New York v. Robert SURRETSKY et al., Defendant.

Supreme Court, Special Term, New York County, Part I.

Oct. 7, 1971.

Frank S. Hogan, Dist. Atty., New York County by, Jeffrey J. Weinsten, Asst. Dist. Atty., for the people.

Berton Goldwater, New York City, for defendant Harold Cohen.

ARNOLD L. FEIN, Justice:

This application by defendant Cohen for a certificate of reasonable doubt (Code of Criminal Procedure, Secs. 527 and 529), made after September 1, 1971, is deemed to be an application for a 'stay of judgment pending appeal to intermediate appellate court,' pursuant to CPL Sec. 460.50, (effective September 1, 1971) and for fixation of bail pending appeal. Defendant pleaded guilty on September 8, 1971, before Mr. Justice Grumet, Supreme Court, New York County, and was duly sentenced on that day to a term of six months, to be served at the New York City Correctional Facility at Riker's Island. Defendant is free on bail, as he has been since his arraignment.

Although defendant pleaded guilty, an appeal is sanctioned by CPL Sec. 710.70(2):

'An order finally denying a motion to suppress evidence may be reviewed upon an appeal from an ensuing judgment of conviction notwithstanding the fact that such judgment is entered upon a plea of guilty.'

Defendant's appeal is premised on a challenge to the denial of the motion to suppress. Armed with a search warrant, the police went to the apartment of codefendant Surretsky, and after exhibiting the warrant were admitted by defendant Cohen. The police then conducted a search and arrested Cohen for possession of a loaded gun. He and the other defendants were indicted for violation of Penal Law Secs. 265.05, 220.05, 260.10 and 235.05. Defendant Cohen's plea of guilty was to one count in satisfaction of all counts against him.

Defendants had previously moved before me for the suppression of the evidence seized following the execution of the warrant. The motion to suppress was duly denied by decision and order dated October 5, 1970. (N.Y.L.J., 10/15/70, p. 18, c. 5). Defendant contends, as he did on the motion to suppress, that the search warrant was defective on its face and was issued on the basis of an affidavit insufficient on its face. Although I held, after due deliberation, that the affidavit and warrant were sufficient, the issue is not free from doubt.

Under the prior statute (Code Crim.Proc. Secs. 527 and 529), on an application for a certificate of reasonable doubt, the issue was not whether 'there will be a reversal on appeal, but rather whether * * * there is presented an arguable substantial question as to claimed error which, in justice, should be decided by the Appellate Tribunal.' (People v. Brod, Sup., 203 N.Y.S.2d 947, 948; People v. Von Cseh, 9 Misc.2d 718, 170 N.Y.S.2d 699; People v. Hines, Sup., 12 N.Y.S.2d 454).

The new Criminal Procedure Law does not change this rule; it shifts the emphasis to the question of bail.

As indicated in Professor Denzer's Practice Commentary, CPL 460.50 does not postulate any criteria for issuance of a stay. It 'cursorily provides for discretionary stay orders accompanied by discretionary orders of bail.' (Criminal Procedure Law, Sec. 460.50, McKinney, (1970) Vol. 11A, Part 2, p. 429). As noted in the Commentary, the criteria for bail are set forth in CPL Sec. 510.30(2):

'Where the principal is a defendant-appellant in a pending appeal from a judgment of conviction, the court must also consider the likelihood of ultimate reversal of the judgment. A determination that the appeal is palpably without merit alone justifies, but does not require, a denial of the application, regardless of any determination made with respect to the factors specified in paragraph (a).'

The factors specified in paragraph (a) are the factors to be considered on any bail application. Although I obviously must doubt that there is a likelihood of ultimate reversal, I cannot say that the appeal is 'palpably without merit.' Even if I believed the appeal to be without merit, there would still be a manifest danger of injustice to the defendant if I were to deny the application.

All or a substantial portion of the sentence may be served before the Appellate Division has an opportunity to review my decision and order denying suppression. Had I found the affidavit insufficient and the warrant defective, and granted the motion to suppress, it is hardly likely that d...