Opinion
March 21, 1983
Appeal by defendant from a judgment of the Supreme Court, Kings County (Tomei, J.), rendered April 20, 1981, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Bonomo, J.), of defendant's motion to suppress certain statements and physical evidence. Judgment reversed, on the law, motion to suppress granted as to the defendant's statements and otherwise denied, and new trial ordered. The hearing court found that the police officers' warrantless and nonconsensual entry into defendant's bedroom violated Payton v. New York ( 445 U.S. 573), but, in view of the then-controlling precedent, declined to apply Payton retroactively to defendant's case, and denied his motion, inter alia, to suppress the statements he made after the improper entry. Since that time, the Supreme Court held, in United States v. Johnson ( 457 U.S. 537), that Payton should be applied retroactively to all convictions not yet final when Payton was decided (April 15, 1980). Since, at that time, defendant had not yet been convicted, Payton should apply to his case, and his motion, insofar as it was to suppress his statements, should be granted. We have considered defendant's other contentions, and find them to be without merit. Lazer, J.P., Gibbons, Thompson and Weinstein, JJ., concur.