Opinion
June 27, 1969
Appeal from the Erie County Court.
Present — Goldman, P.J., Del Vecchio, Gabrielli, Moule and Henry, JJ.
Determination of appeal withheld and case remitted to Erie County Court, for a further hearing on the motion to suppress in accordance with the following Memorandum: Defendant is entitled to a full and complete hearing on the suppression of the evidence seized and ultimately used during his trial. Prior to the commencement of the trial on charges of burglary and petit larceny, defendant's assigned counsel moved to suppress certain critical items of evidence. Upon the hearing, defendant was called as a witness but his questioning was suspended when the court ruled that any testimony given by defendant could be used against him upon the trial regardless of whether or not he took the stand. This was, of course, error ( Simmons v. United States, 390 U.S. 377, 389-394) and the firm ruling made by the Judge, who was thereafter to conduct the trial and rule upon the admissibility of the evidence, effectively deprived defendant of a fair and complete hearing, thus requiring a de novo suppression hearing (cf. People v. Conilio, 23 N.Y.2d 701).