People v. Mercado

Appeal by each defendant from a judgment of the Supreme Court, Queens County, entered March 28, 1963 on his plea of guilty, convicting him of attempted burglary in the third degree, and imposing sentence. As to each defendant, judgment affirmed. The defendants’ motion to suppress evidence was properly denied (cf. People v. Rivera, 14 N Y 2d 441, 444-445; People v. Entrialgo, 19 A D 2d 509, 511, affd. 14 N Y 2d 733; United States v. Vita, 294 F. 2d 524, 530, cert. den. 369 U. S. 823; People v. Wulffen, 23 A D 2d 875). In our opinion, under the decisional law of this State, it may not properly be held that, on a motion to suppress evidence, the burden of proof is on the People (cf. People v. Allen, 45 Misc 2d 739; People v. Malinsky, 15 N Y 2d 86 — compare the footnote No. 2 in the official bound volume with the footnote in the official advance sheet dated Feb. 10, 1965). Ughetta, Acting P. J., Brennan, Rabin, Hopkins and Benjamin, JJ., concur.