Opinion
July 3, 1978
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered January 10, 1977 (the date on the clerk's extract is January 11, 1977), convicting him of promoting prostitution in the second and third degrees, upon a jury verdict, and imposing sentence. The appeal also brings up for review the denial of defendant's motion to suppress evidence. Judgment reversed, on the law and the facts, motion to suppress evidence granted, indictment dismissed, and case remitted to the Supreme Court, Queens County, for the purpose of entering an order in its discretion pursuant to CPL 160.50. The District Attorney, in his brief, concedes, and our review of the record confirms, that he failed to educe, at the suppression hearing, evidence which would support a finding that the defendant's arrest was predicated upon probable cause. The District Attorney argues, however, that the combined record of the hearing and trial establishes the validity of defendant's arrest and justifies the search incidental thereto which produced the incriminating physical evidence. The evidence adduced at a trial cannot be used to supply a deficiency of, or buttress, the evidence at a suppression hearing. At a suppression hearing the burden is upon the prosecution to "come forward with some evidence to show probable cause" (People v Baldwin, 25 N.Y.2d 66, 70-71). When made before trial, as here, the motion must be determined before the trial begins (CPL 710.40, subd 3). Hence, the evidence forming the basis of that determination cannot be elaborated upon by evidence adduced at the trial. The inculpatory evidence here, both physical and oral, must be suppressed since it was developed following defendant's arrest, for which probable cause has not been properly established. Mollen, P.J., Hopkins, Titone, Shapiro and O'Connor, JJ., concur.