People v. Cotton

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered December 6, 1963 on his plea of guilty, convicting him of attempted violation of subdivision 3 of section 1751 of the Penal Law (relating to narcotic drugs), and imposing sentence. Defendant brings up for review, as permitted by statute (Code Grim. Pro., § 813-c), two orders of the same court, entered respectively October 18, 1963 denying his renewed motions in which he sought reargument of his original motion to suppress evidence alleged by him to have been seized illegally. Defendant also brings up for review an “ order ” made April 29, 1963, denying his original motion to suppress. No such order is contained in the record. However, the validity of such asserted order has been reviewed. Judgment and orders affirmed. We have examined the record and find that the evidence adduced at the hearing on the original motion to suppress was sufficient to prove beyond a reasonable *891doubt the legality of the search as incident to a lawful arrest, even if the burden of proof had been cast upon the People pursuant to the rule of People v. Malmsky (15 N Y 2d 86, 91). If, at the hearing on defendant’s motion to suppress evidence alleged to have been seized illegally, error was committed by placing the burden of proof upon him, nevertheless, on the facts in this case such error did not affect his substantial rights and may be disregarded (Code Grim. Pro., § 542). Brennan, Acting P. J., Hill, Rabin, Hopkins and Benjamin, JJ., concur.