People v. Benthall ( 1983 )

— Appeal from judgments of the Supreme Court, New York County (Kleinman, J., on suppression hearing, plea and sentence), rendered January 12 and 14, 1982, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the second degree and criminal possession of a weapon in the fourth degree is held in abeyance and the matter remanded for further proceedings as herein indicated. The facts of this case and the issues presented on this appeal are fully and fairly stated in the dissent. The key issue on this appeal (as observed by our dissenting colleagues) is whether the statements the defendant’s female companion, Miss Penfield, made to the police, namely, that a gun and heroin could be found in defendant’s apartment, were freely and voluntarily made. If they were, then, notwithstanding the initial warrantless entry into the apartment and the illegality of the arrest, the information obtained from her may be sufficiently attenuated to serve as probable cause, sufficient to sustain the search warrant later obtained which produced the contraband, for possession of which defendant was convicted. However, if her statements were not freely and voluntarily given, but were the result of coercion, then there is no attenuation, the information remains tainted, and the warrant must fall and the gun and heroin suppressed. Except for the People’s concession that Miss Penfield was “not free to leave”, the evidence respecting the voluntariness of her statements is in sharp conflict and no findings in respect thereto or in respect to attenuation were made by the hearing court. Absent such findings, which obviously turn to a significant degree upon credibility, we cannot conclude that the statements were freely made and attenuated from the illegal arrest and that suppression was properly denied. Therefore, we hold this appeal in abeyance, and remand this case to the Supreme Court, New York County, for further proceedings and determination as to the voluntariness of the statements made and information supplied to the police by Miss Penfield and whether or not there was a sufficient attenuation from the illegal arrest to sustain the validity of the warrant subsequently issued and justify denial of the motion to suppress the evidence seized thereunder. Concur — Kupferman, Kassal and Alexander, JJ.