People v. Schwartz — 52 N.Y.2d 1062

Majority

p. 1062

The People of the State of New York, Respondent, v Ben Schwartz, Appellant.

Argued February 17, 1981;

decided February 26, 1981

p. 1063

APPEARANCES OF COUNSEL

Joseph Panzer for appellant.

Robert M. Morgenthau, District Attorney (Daniel J. Castleman and Vivian Berger of counsel), for respondent.

p. 1064

OPINION OF THE COURT

Memorandum

On the record here, it was error to refuse to grant the application for a hearing on defendant’s motion to controvert the search warrant. Therefore the order of the Appellate Division should be modified and the matter remitted to Supreme Court, New York County, to hold a hearing and determine the motion anew. In the event defendant prevails, the plea should be vacated and appropriate further proceedings ensue. However, if it is the People who prevail, the judgment should be amended to reflect the additional proceedings that have taken place.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order modified and case remitted to Supreme Court, New York County, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.