Beldoek, P. J., Christ, Rabin, Benjamin and Munder, JJ., concur.
Citator
UpLaw has not yet analyzed People v. Cardaio. The absence of a flag is not a finding that it is good law.
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PEOPLE v. CARDAIO,28 A.D.2d 1144[2d Dept 1967]
THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. NICHOLAS CARDAIO,
Appellant.
Appellate Division of the Supreme Court of New York, Second Department.
Appeal by defendant, as limited by his brief, from an order of the Supreme Court, Queens County, dated June 5, 1967, which for the second time denied his motion to suppress certain evidence, property allegedly illegally seized from him. Order reversed, on the law, and case remitted to the Supreme Court, Queens County, for a new hearing to be held in accordance herewith and for a new determination. The findings of fact below are affirmed. This court previously affirmed (1) defendant's convictions of feloniously possessing a narcotic drug with intent to sell and feloniously possessing a narcotic drug and (2) an order which denied his motion for suppression (Peoplev.Cardaio,25 A.D.2d 953). Upon a further appeal, the Court of Appeals withheld its determination and remitted the case to the trial court for a further hearing on the motion to suppress for the reason that where, as here, the person (Konrad) who was the source of the information upon which the police had based probable cause had denied that he was in fact such source, it was incumbent upon the People to go forward with sufficient competent evidence to refute such denial (Peoplev.Cardaio,18 N.Y.2d 924). In our opinion, the People sufficiently established that Konrad was such source through the testimony of Detective Lieutenant Mulligan. However, we believe that the Court of Appeals, in remitting, intended a full hearing on this point. Therefore, Konrad should have been permitted to testify as a rebuttal witness. Beldock, P.J., Christ, Rabin, Benjamin and Munder, JJ., concur.Page 1145