73 A.D.2d 1031 | N.Y. App. Div. | 1980
Case held, decision reversed and matter remitted to Onondaga County Court for further proceedings in accordance with the following memorandum: Defendant has been convicted of sodomy, first degree, upon his plea of guilty. The plea followed a suppression hearing at which the court held that a confession and certain photographs would be admissible at trial. The photographs depicted several children and defendant in the nude and performing unnatural sexual acts. Prosecution witnesses testified that the police obtained the photographs when a woman acquaintance of defendant voluntarily delivered them to the police. Defendant attempted to show that the acquaintance was acting as a police agent and that the photographs had been illegally seized from his apartment. The court foreclosed questioning, however, ruling that the woman was acting as a private individual and that constitutional rules of unlawful search and seizure were inapplicable (see People v Boettner, 50 AD2d 1074). The court improperly restricted defense counsel’s attempts to determine whether there was a prior relationship between the police and the woman who obtained the photographs. The matter is remitted to County Court to permit defense counsel to question the woman fully on the subject. Upon its conclusion, the transcript and findings of the court may be resubmitted for disposition of this appeal. We have reviewed other points raised by counsel and find no merit to them. (Appeal from judgment of Onondaga County Court—sodomy, first degree.) Present—Simons, J. P., Schnepp, Callahan, Doerr and Witmer, JJ.
