Opinion
Argued March 25, 1982
Decided May 4, 1982
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, STANLEY S. OSTRAU, J.
Barry S. Stendig and William E. Hellerstein for appellant.
Mario Merola, District Attorney ( David H. Fromm and Steven R. Kartagener of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be modified, the denial of defendant's motion to suppress vacated, and the case remitted to Supreme Court for further proceedings in accordance with this memorandum.
Defendant's motion to suppress his confession was denied by Supreme Court on January 30, 1979, at least in major part on the authority of People v Morales ( 42 N.Y.2d 129) which upheld the right of the police to detain a suspect on reasonable suspicion for a brief period of time for investigative questioning. On June 5, 1979, the Supreme Court of the United States announced its decision in Dunaway v New York ( 442 U.S. 200) unequivocally disapproving investigative detention of suspects for custodial interrogation, thereby effectively eradicating the legal premise on which the suppression court had based its denial of defendant's motion. On February 24, 1981 the Appellate Division affirmed, without opinion.
In the procedural posture in which this case reaches us no determination has been made by either court below as to whether the police officers had probable cause to take defendant into custody or whether, if they did not have probable cause and his detention was thus illegal, there were such attenuating circumstances as to establish that his subsequent confession was neither the product of his illegal arrest nor obtained in consequence of its exploitation. Neither of such factual determinations can be made as a matter of law on the record before us.
Accordingly, the order of the Appellate Division should be modified, the denial of defendant's motion to suppress his confession vacated, and the case remitted for a new suppression hearing. If thereafter the motion is again denied, defendant's conviction should stand and an amended judgment should be entered reflecting this disposition, any appellate review of which will be limited to the suppression ruling. On the other hand, if the motion to suppress is granted, defendant's conviction should be vacated and the case continued for further proceedings on the indictment.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
Order modified and case remitted to Supreme Court, Bronx County, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.