Opinion
Argued January 4, 1983
Decided February 15, 1983
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, NICHOLAS TSOUCALAS, J.
John L. Pollok and Annette Ferstenberg for appellant.
John J. Santucci, District Attorney ( Barbara Goldberg of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
The record of the suppression hearing contains no evidence or factual findings supporting the defendant's contention that the police illegally entered his home to take him into custody. Neither can it be said that the suppression court abused its discretion as a matter of law in denying the defendant's motion to reopen the hearings following the Supreme Court's decision in Payton v New York ( 445 U.S. 573) since the defendant made no allegations of fact or offer of proof demonstrating the relevance of that decision to the circumstances of his case. Thus, although the Payton decision is entitled to retroactive effect ( United States v Johnson, 457 U.S. 537), there is no factual predicate for concluding that the defendant's rights as announced in that decision have been violated (cf. People v De Mauro, 48 N.Y.2d 892, 893; People v Charleston, 54 N.Y.2d 622; People v Friola, 11 N.Y.2d 157, 160).
We have considered the defendant's other contentions and find no basis for reversing the conviction.
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER and SIMONS concur; Judge MEYER dissents and votes to reverse in a separate memorandum in which Judge FUCHSBERG concurs.
Order affirmed, in a memorandum.
During the original suppression hearing defendant's attorney asked for specific findings as to whether the Trial Judge accepted the police officer's version or defendant's version of what took place when he was arrested. Several months later, after the Supreme Court decided Payton v New York ( 445 U.S. 573), he moved to reargue and during the colloquy on that motion he suggested that the court "find more of the circumstances of how the arrest was made and how entry was gained by the police officer" and posed the question "whether or not there was a consent to having him come into the house or whether or not he came in because of the authority of his badge."
The Trial Judge refused to make findings on that issue because he ruled that Payton was not to be given retroactive effect. He granted defendant's motion for reconsideration but adhered to his original denial of suppression, but did so not in the exercise of discretion but on the basis of an erroneous ruling on the law. I would, therefore, remit for the making of additional findings and, because the People were denied the opportunity to put in opposing evidence by the retroactivity ruling, for the taking of additional evidence as well.