People v. Dumas 29 A.D.2d 984

Appeal by the People from an order of the Supreme Court, Kings County, dated February 14, 1967, which granted defendant’s motion to suppress evidence. Order reversed, on the law and the facts and in the interests of justice, and new hearing granted. At the hearing on defendant’s motion to suppress, the only evidence presented was the uncontradieted testimony of one of the three police officers who witnessed the incident leading to the arrest of defendant and the search and seizure of the narcotics, hypodermic needles and syringes. The court chose not to believe that testimony. In our opinion, a full hearing should be had at which the People should be given the opportunity to present the testimony of all three officers and the defendant should be given the opportunity to present his evidence. Beldock, P. J., Brennan and Munder, JJ., concur; Christ and Benjamin, JJ., dissent and vote to affirm the order, with the following memorandum: It was within the proper scope of the Justice trying the issues in this case to disbelieve the police officer. He clearly stated this to be the reason for his determination. The majority slip suggests that the People should be permitted to have a new hearing so as to present witnesses not previously called and for whose absence no excuse was offered. The People had a full opportunity to put in the complete case for the prosecution and it may be presumed that this was done and that witnesses within the People’s control who were not called would not have supported its position. The defendant should not be subjected to a succession of hearings upon this issue.