Opinion
April 25, 1966
Appeal by defendants from judgments of the Supreme Court, Queens County, rendered March 28, 1963 after a jury trial, convicting them of burglary in the third degree and grand larceny in the first degree and imposing sentence. Judgments reversed, on the law and the facts, and new trial ordered. This court has previously held ( People v. Mullgrav, 23 A.D.2d 855) that whether defendants' motion to suppress evidence was properly denied turned upon a question of fact, namely, whether the door to their room was open when the police officer, without a search warrant, arrived at the premises where they lived or whether their landlady opened the door for the officer. Since no finding was made by the trial court on this question, we remitted the matter for a further hearing and proceedings, pending which we withheld determination of the appeal from the judgments. Such further hearing and proceedings have been had and have resulted in a finding of fact by the trial court that the landlady opened the door for the officer — a finding which is amply supported by the record and which we affirm. The search and seizure which followed were, therefore, illegal. Accordingly, the judgments of conviction must be reversed and a new trial ordered ( Stoner v. California, 376 U.S. 483; United States v. Jeffers, 342 U.S. 48; Lustig v. United States, 338 U.S. 74). Ughetta, Acting P.J., Christ, Hill, Rabin and Benjamin, JJ., concur.