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People v. Malinsky

19 N.Y.2d 262 Court N.Y. Decision date 1967-03-02 English

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p. 262
The People of the State of New York, Respondent, v. Morris Malinsky, David Lustigman and Robert Felt, Appellants.
Argued October 15, 1964; determination withheld January 7, 1965; motion submitted February 13, 1967;
decided March 2, 1967.
p. 263
Maurice Edelbaum for motion.
No one opposed.

Upon the hearing which we directed when this case was previously before ns ( 15 N Y 2d 86 ), the People declined to disclose the name of the informer, offered no evidence of his reliability and failed to adduce any other evidence sufficient to establish the existence of probable cause for the arrests of the defendants (52 Mise 2d 717). Since, then, the search incident to those arrests was illegal, the motion to suppress the evidence thereby obtained should have been granted. It follows that the proof upon which the convictions rested fell short of establishing guilt beyond a reasonable doubt.

The defendants’ motion to restore the appeal to the calendar is granted and, upon such restoration, the judgment of conviction should be reversed and the indictment dismissed.

■ Chief Judge Füld and Judges Van Voobhis, Burke, Scileppi and Bergan concur; Judges Keating and Breitel taking no part.

Motion to restore appeal to the calendar of the Court of Appeals granted.

Judgment reversed and indictment dismissed.

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