SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
February 17, 1969
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
AMERICA MENDEZ, APPELLANT
Appeal from (1) a judgment of the Supreme Court, Kings County, rendered April 20, 1965, which convicted defendant of abortion, on her plea of guilty, and sentenced her to a prison term of from one to two years, and (2) an order of said court dated December 24, 1964, which denied defendant's motion to controvert a search warrant and to suppress evidence obtained thereunder.
Beldock, P. J., Christ, Rabin, Benjamin and Munder, JJ., concur.
The late Justice Henry L. Ughetta was part of the panel of Justices of this court to which this appeal was originally submitted; the parties have stipulated that another Justice be substituted for him on this appeal. Order reversed, on the law, and case remitted to the trial court for a new hearing and new determination on defendant's said motion, in accordance with the views stated herein. The findings of fact below have not been affirmed. In the interim, the appeal from the judgment will be held in abeyance. On June 26, 1967, this court (1) remitted the action to the trial court for a hearing and a determination, with specific findings, as to whether the Justice to whom the application for an eavesdropping order was made had reasonable grounds to issue it and (2) directed that the appeals were to be held in abeyance in the interim (People v. Mendez, 28 A.D.2d 727). On January 11, 1968, a hearing was held and the Justice presiding found that the Justice who had issued the eavesdropping order did not have reasonable grounds therefor, that the affidavit was insufficient and that the confidential sources of information were not revealed to the issuing Justice. This determination casts a doubt on the validity of the order under review which denied defendant's motion to controvert the search warrant and to suppress evidence obtained thereunder. In our opinion a new hearing should be had on the motion to controvert the search warrant and to suppress evidence obtained thereunder.
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