Opinion
January 24, 1963
Order, entered on September 28, 1962, denying defendant's motion to suppress the use of certain evidence, unanimously affirmed on the law and the facts. This case is presently on appeal before the Court of Appeals ( People v. Coffey, 11 N.Y.2d 142), which withheld determination of the appeal and remitted the matter to the Court of General Sessions (now the Supreme Court) "in order that defendant may make promptly * * * a motion to suppress the challenged evidence" (p. 148). The defendant did make such a motion, and the motion was denied. In the absence of a remittitur, and in light of the direction by the Court of Appeals remanding the case to the Court of General Sessions, we entertain some doubt of our jurisdiction in this phase of the matter (but, see, People v. Durling, 303 N.Y. 382, where determination of the appeal was withheld "in order that defendant may promptly renew in the Seneca County Court his motion for a new trial * * * upon the ground solely of alleged misconduct of jurors" [p. 385]). After the hearing which followed the remand, an appeal was taken to the Appellate Division ( People v. Durling, 281 App. Div. 794) and thereafter to the Court of Appeals ( 305 N.Y. 555). The record in the instant case sustains the determination appealed from.
Concur — Botein, P.J., Breitel, McNally, Stevens and Eager, JJ.