People v. Clements , 84 A.D.2d 707 ( 1981 )

Determination of appeal from two orders of Supreme Court, New York County; (1) entered August 8,1980 (Galligan, J.), which suppressed a loaded .25 caliber semiautomatic pistol discovered in defendant’s pocket; and (2) entered January 7, 1981 (Haft, J.), which dismissed the indictment accusing defendant of criminal possession of a weapon in the third degree, held in abeyance and the matter remanded for further findings of fact. CPL 710.60 (subd 4) requires that the hearing court make findings of fact essential to the determination of the motion before it. Here the police officer and the defendant testified in a contradictory manner as to critical facts. The court stated, “I find that, I believe both witnesses are credible witnesses. The problem that must be resolved is a question of law * * * assuming that the officer’s testimony is correct as he stated it”. Where the testimony of the witnesses conflicts, and the determination as to their credibility may affect the application of the legal principles involved, that issue must be resolved. This record does not serve as a sufficient basis for review of the decision of the hearing Judge. Concur — Murphy, P. J., Sandler and Carro, JJ.

Markewich and Silverman, JJ., concur in the result only.