People v. Garofalo

Herlihy, J. (dissenting). The motion to suppress was made by the defendant and the statute provides that a trial "may not be commenced until determination of the motion” (CPL 710.40, subd 3). The court was in legal error in failing to follow the statute. If the court had found in favor of the People and the defendant had thereafter been convicted, he would have a right to appeal the court’s ruling. If the motion had been decided prior to the trial and against the People, there would have been a right to appeal. Thus, the failure of the defendant to insist upon a hearing prior to the opening…