Opinion
Argued November 18, 1975
Decided December 22, 1975
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, STEPHEN SMYK, J.
Louis J. Casella, Public Defender, for appellant.
Patrick D. Monserrate, District Attorney (G. Peter Van Zandt of counsel), for respondent.
Memorandum. The order of the Appellate Division should be affirmed.
However implausible the police version of the sequence of events involved in this case may be, that remained an issue of fact resolved by the courts below and beyond review by this court. The further issue whether the confessions, after suitable preinterrogation warnings, were obtained free of taint from the initially illegal entry into defendant's apartment is also, for similar reasons, beyond review in this court. Counsel's speculation that the suppression hearing court was unaware of or mistaken concerning the applicable burden of persuasion in establishing consent to a warrantless search is unavailing. Error must be shown and it is not enough to suggest that there might have been error.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in a memorandum.
Order affirmed.