52 A.D.2d 587 | N.Y. App. Div. | 1976
Appeals by defendants from three judgments (one as to each of them) of the Supreme Court, Kings County, each rendered June 9, 1975 (the date on the clerk’s extracts of the minutes is September 30, 1975), convicting each of them of unlawful transportation and possession of untaxed cigarettes, as a Class E felony, upon their pleas of guilty, and imposing sentence. The appeals also bring up for review an order of the same court, entered March 25, 1975, which denied defendants’ motion to suppress certain physical evidence. Judgments and order affirmed. No opinion. This case is remitted to the Supreme Court, Kings County, for further proceedings pursuant to CPL 460.50 (subd 5). Rabin, Shapiro and Titone, JJ., concur; Martuscello, Acting P. J., and Cohalan, J., dissent and vote to reverse the judgments and order, grant the motion, and dismiss the indictment, with the following memorandum: In our opinion, the facts at bar are so analogous to those in People v Vassallo (46 AD2d 781), People v Comacho (50 AD2d 904), and People v Dwyer (48 AD2d 664) that, on the authority of those decisions, the motion to suppress should have been granted, and the indictment dismissed. [81 Misc 2d 287.]