People v. Marion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.), rendered November 4, 1998, convicting him of criminal possession of a controlled substance in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress physical evidence.

Ordered that the matter is remitted to the Supreme Court, Kings County, to report its findings of fact and conclusions of law in accordance with CPL 710.60 (6), and the appeal is held in abeyance in the interim; the Supreme Court, Kings County, shall file its report with all convenient speed.

The defendant contends that the police did not have probable cause to arrest him and search his apartment. Whether this contention has merit depends, in part, on the credibility of the police witnesses who testified at the suppression hearing (see, People v Neely, 219 AD2d 444, 447; People v Robertson, 175 AD2d 345, 346). The record contains no findings of fact and conclusions of law which would permit appellate review of that issue (see, CPL 710.60 [4], [6]; People v Dorant, 207 AD2d 797). Under the circumstances of this case, we decline to exercise our fact-finding power (see, CPL 470.15 [1]), and therefore remit the matter to the Supreme Court, Kings County, so that it may make findings of fact regarding its determination on the issue of the credibility of the police witnesses, and its conclusions of law (see, People v Parker, 205 AD2d 713). Santucci, J. P., Thompson, Sullivan and Goldstein, JJ., concur.