Opinion
July 12, 1989
Appeal from the Supreme Court, Erie County, Kubiniec, J.
Present — Doerr, J.P., Denman, Boomer, Green and Pine, JJ.
Case held, decision reserved, and matter remitted to Supreme Court, Erie County, for further proceedings, in accordance with the following memorandum: The court erred in summarily denying defendant's motion to suppress tangible evidence seized from him during a border search. Because no hearing was conducted, the record is insufficient to allow us to determine whether there was "some" suspicion justifying the "pocket search" conducted by Customs officials (People v Luna, 73 N.Y.2d 173, 178-180). Therefore, we hold the case and remit for a hearing to determine defendant's Fourth Amendment claim.