People v. Lo Cicero , 25 A.D.2d 784 ( 1966 )

Appeal by-defendants (1) from judgments of the County 'Court, Westchester County, rendered November 8, 1963, convicting them of burglary in the third degree (2 counts), grand larceny in the first degree and possession of burglar’s tools, upon a jury verdict, and imposing sentence, except that sentence was suspended on the possession of burglar’s tools count as to defendants Carlo Lo Cicero and John Saponaro; and (2) from an order of said court, entered September 24, 1963, which denied their motion to suppress evidence (without a hearing) and to inspect Grand Jury minutes and dismiss the indictment for insufficiency. Order modified, on the law, (1) by striking out so much of the provision therein which determined the evidence-suppression part of the motion and (2) by adding a provision that a hearing be held in the court below on said part of the motion. As so modified, order affirmed and action remitted to the County Court, Westchester County, for further proceedings in accordance herewith. No findings of fact have been considered. Pending such hearing and proceedings, determination of the appeal from the judgments will be held in abeyance. Upon such hearing all the available and relevant facts should be adduced and a determination, stating in writing the specific facts found, should be made by the court. Thereupon, the procedure prescribed in People v. Mullgrave (23 A D 2d 855, 856) should be followed. In our opinion, there was at least an issue of fact as to the lawfulness of the seizure of the gold charm allegedly found in the jacket of defendant Carlo Lo Cicero, taken from him by policemen.

Ughetta, Acting P. J., Hill, Rabin, Hopkins and Benjamin, JJ., concur.