Opinion
March 15, 1971
Proceeding pursuant to article 78 of the CPLR to annul respondent's determination dated November 20, 1970, which canceled petitioner's off-premises beer license. Determination annulled, on the law, without costs, and matter remitted to respondent for a new hearing and a new determination. In the hearing before respondent the evidence concerning gambling was furnished by a police officer acting under a search warrant. His search led not only to a seizure of gambling notations but a gun located on a shelf beneath a cash register where he thought the gambling papers were located. Counsel for petitioner made objection to the admission into evidence of the physical evidence of gambling. Subsequent to the determination under review a hearing in the Criminal Court of the City of New York, Kings County, resulted in the suppression of the gambling evidence. This evidence was therefore an improper basis upon which respondent could base its finding ( Matter of Finn's Liq. Shop v. State Liq. Auth., 24 N.Y.2d 647, 662; Terpstra v. Niagara Fire Ins. Co., 26 N.Y.2d 70, 74-75). Under these circumstances respondent should hold a new hearing and base its determination on evidence permitted under applicable law. Rabin, P.J., Hopkins, Munder, Martuscello and Latham, JJ., concur.