Opinion
December 10, 1964
Appeal from the Erie County Court.
Present — Williams, P.J., Bastow, Goldman, Noonan and Del Vecchio, JJ.
Judgment unanimously reversed on the law and facts and in the interest of justice and a new trial granted. Memorandum: The defendant appeals from a judgment of conviction for burglary in the third degree and grand larceny in the second degree and also from an order denying a writ of error coram nobis following a hearing. By stipulation these appeals have been consolidated. At the time of trial certain evidence (a postal badge) had been suppressed and of course was not used. Proof of an oral admission of the defendant was presented however. It is urged that this admission was the fruit of the illegally obtained and suppressed evidence. This however has never been judicially determined in an appropriate proceeding. We conclude that the judgment of conviction should under these circumstances and in the interest of justice be reversed and a new trial granted. This of course will afford the opportunity to test the legality of the alleged admission prior to a new trial. In view of this conclusion we do not reach or pass upon any other question.