Opinion
December 15, 1980
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered December 15, 1976, as amended by a resentence imposed June 2, 1977, convicting him of murder in the second degree (two counts), attempted murder in the second degree, robbery in the first degree and criminal possession of a dangerous weapon in the second degree, upon a jury verdict. This appeal also brings up for review the denial of defendant's motions to suppress certain evidence. Case remitted to Criminal Term to hear and report in accordance with the following memorandum and appeal held in abeyance in the interim. As the People concede, the suppression court erred in severely limiting the defendant's cross-examination of the sole arresting officer who testified, with respect to the issue of whether there was probable cause to arrest defendant. It is well settled that on a motion to suppress a defendant's postarrest statements, the suppression court is required to permit the defendant to "delve fully into the circumstances attendant upon his arrest" (People v. Misuis, 47 N.Y.2d 979, 981; see People v. Wise, 46 N.Y.2d 321), for "A statement, voluntary under Fifth Amendment standards, will nevertheless be suppressed if it has been obtained through the exploitation of an illegal arrest (Brown v Illinois, 422 U.S. 590)" (People v. Calhoun, 73 A.D.2d 972). While a prima facie showing of probable cause to arrest defendant was made out, we cannot conclude, on this record, that defendant was not prejudiced by the court's erroneous ruling (see People v Wise, supra). Accordingly, a new hearing is required, initially limited to the issue of whether there was probable cause to arrest defendant. If the hearing court finds that there was not probable cause to arrest defendant, thus rendering his arrest improper, it must then determine whether the defendant's postarrest statements must be suppressed as fruit of an unlawful arrest or whether there was sufficient attenuation to sustain the admissibility of the statements (see Brown v. Illinois, supra). If it is determined that the defendant's statements must be suppressed, then it must be further determined whether the gun mentioned in defendant's statements and introduced into evidence at trial must also be suppressed as additional fruit of an unlawful arrest (see Wong Sun v. United States, 371 U.S. 471, 487-488). Turning to the remaining issues, Payton v. New York ( 445 U.S. 573) can afford defendant no basis for relief since we, like the Appellate Division, First Department, decline to apply the holding of that case retroactively to cases, such as this one, where the defendant's warrantless arrest at his residence occurred before the decision in Payton was announced (see People v. Benitez, 76 A.D.2d 196, 199, n 2; see, also, United States v. Corcione, 592 F.2d 111, 117-118, cert den 440 U.S. 975, 985). Assuming that defendant was represented by counsel on an unrelated charge at the time he was questioned with respect to the events underlying the charges at bar, his postarrest statements need not be suppressed on that ground since there is nothing in the record to suggest that the police were aware that defendant, who was at liberty at the time of his arrest, was then facing another charge or represented by counsel with respect to that charge (see People v. Servidio, 77 A.D.2d 191). We have examined the remaining issues raised and have determined that none of them requires that defendant be afforded any relief. Mollen, P.J., Titone, Margett and Weinstein, JJ., concur.