People v. Havelka , 376 N.Y.S.2d 1022 ( 1975 )

— Appeal by defendant from a judgment of the County Court, Westchester County, rendered October 30, 1974, convicting him of possession of a weapon, dangerous instrument and appliance, as a felony, and possession of a weapon, dangerous instrument and appliance, as a misdemeanor, and imposing sentence. The appeal brings up for review a determination of the same court, dated September 10, 1974, which denied defendant’s motion to suppress evidence. Case remanded to the County Court for a hearing to be held in accordance with the following memorandum, and appeal held in abeyance in the interim. At the conclusion of the hearing on defendant’s motion to suppress, the trial court denied the motion, basing its determination, in part, on the fact that the police acted appropriately after receiving certain information from a Mr. Hechinger, apparently the proprietor of a tavern adjacent to the site where the weapons were recovered. There was, however, no testimony received at the hearing from Hechinger, who had never previously been used as a police informant. In fact, Patrolman Bassano, the sole witness for the People at the hearing, received his information concerning a potential gun battle on Westchester Avenue or at the Depot Tavern from a fellow police officer who told him that the source of his information was a call from the Depot Tavern. The fellow officer did not tell Bassano the identity of the caller. Bassano himself did not know if Hechinger was the owner, the bartender or a mere employee of the Depot Tavern and, in fact, prior to the night of defendant’s arrest, he had never known of Hechinger’s existence. A new hearing should be held to afford the People an opportunity to produce Hechinger and any other proof they may have to establish probable cause. Latham, Margett, Brennan and Shapiro, JJ., concur; Martuscello, Acting P. J., dissents and votes to affirm.