SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
October 8, 1968
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
DAVID CUMMINGS, APPELLANT
Determination of defendant's appeal from a judgment of the Supreme Court, New York County, rendered May 10, 1965, convicting him, upon his plea of guilty, of the crime of attempted assault in the second degree, is withheld and the case remitted for a further hearing on the motion to suppress evidence.
Concur -- Botein, P. J., Stevens, Eager, Tilzer and Rabin, JJ.
There must be a further hearing on the motion to suppress at which the People, in order to prevail, will be under the burden of going forward with evidence to show that probable cause existed to make the arrest so as to render the search incident thereto proper. At such further hearing defense counsel shall be permitted to examine any prior statements or records of witnesses and to cross-examine the police witnesses who testified at the prior hearing. (People v. Malinsky, 15 N.Y.2d 86; People v. Horowitz, 21 N.Y.2d 55.)
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