Opinion
Argued February 16, 1984
Decided May 8, 1984
Appeal from the Supreme Court in the Second Judicial Department, Lawrence J. Finnegan, J.
John J. Santucci, District Attorney ( Catherine Lomuscio and Richard C. Denzer of counsel), for appellant.
David Samel and William E. Hellerstein for respondent.
MEMORANDUM.
The order of the Appellate Term should be affirmed.
Although the court erred in holding that the People should have produced the undercover officer at the hearing (see People v Petralia, 62 N.Y.2d 47), its acceptance of the defendant's alternative argument, that under the circumstances the evidence seized in the premises could not be said to be in plain view, involves a mixed question of law and fact which is not subject to further review in this court when, as here, it is supported by evidence in the record (see People v Harrison, 57 N.Y.2d 470). Thus the order of the Appellate Term should be affirmed for this reason alone.
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur.
Order affirmed in a memorandum.