Opinion
September 29, 1975
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered April 27, 1973, convicting him of possession of gambling records and attempted possession of a dangerous drug in the third degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review a decision of the same court, rendered January 12, 1973, which, after a hearing, denied defendant's motion to suppress evidence. By a prior order of this court the case was remanded to Criminal Term for a further hearing and a report to this court on the issue of control of a stairway leading to defendant's apartment, and the appeal has been held in abeyance in the interim (People v Cardona, 47 A.D.2d 850). Such further hearing has been held and the report to this court concludes that the stairway was under defendant's control. Judgment reversed, on the law and the facts, motion granted, and indictment dismissed. At the hearing held at Criminal Term pursuant to this court's prior order, the People conceded that the stairway and vestibule, from which the arresting police officers obtained their view of defendant in the possession of contraband, were parts of the premises leased to defendant. This case is thus distinguishable from People v Ernest E. ( 38 A.D.2d 394, affd 30 N.Y.2d 884), originally relied upon by Criminal Term. Since the observations of the police officers were made without a warrant from a constitutionally protected place, they did not constitute grounds for defendant's arrest. The suppression motion should therefore have been granted and the indictment dismissed. Latham, Acting P.J., Cohalan, Christ, Brennan and Shapiro, JJ., concur.