PEOPLE v. HUGHES, 30 N.Y.2d 810 (1972)

334 N.Y.S.2d 906, 286 N.E.2d 280

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. WAYNE D. HUGHES, Appellant. THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. KENNETH J. GEISING, Appellant.

Court of Appeals of the State of New York.Argued May 4, 1972
Decided June 1, 1972

Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, ROBERT P. KENNEDY, J.

Page 811

Nicholas P. Varlan, Public Defender (John E. Carter, Jr. of counsel), for appellants.

Jack B. Lazarus, District Attorney (Melvin Bressler of counsel), for respondent.

Orders affirmed; no opinion.

Concur: Judges SCILEPPI, BERGAN, BREITEL, JASEN and GIBSON. Chief Judge FULD and Judge BURKE dissent and vote to reverse upon the ground that the People failed to sustain their burden of establishing that the defendant Hughes “freely and voluntarily” consented to the search. (Bumper v. North Carolina, 391 U.S. 543, 548; see, also, Higgins v. United States, 209 F.2d 819, 820.) It follows, therefore, that the search was unlawful and the evidence seized inadmissible.