People v. Pettinato

69 N.Y.2d 653 (1986)

The People of the State of New York, Respondent, v. Anthony Pettinato, Appellant.

Court of Appeals of the State of New York.

Argued November 18, 1986.

Decided December 16, 1986.

Alan M. Dershowitz, of the Massachusetts Bar, admitted pro hac vice, Nathan Z. Dershowitz and Ellen J. Schneider for appellant.

Robert M. Morgenthau, District Attorney (Debora K. Grobman and Mark Dwyer of counsel), for respondent.

Chief Judge WACHTLER and Judges MEYER, SIMONS, KAYE, ALEXANDER, TITONE and HANCOCK, JR., concur in memorandum.

*654MEMORANDUM.

The order of the Appellate Division should be reversed, the motion to suppress granted and the indictment dismissed.

Because a warrantless intrusion by a government official is presumptively unreasonable, it is the People's burden in the first instance to establish justification (People v Calhoun, 49 N.Y.2d 398, 402; see, People v Knapp, 52 N.Y.2d 689, 694). Only after it has done so is it defendant's burden to prove illegality. Here there is nothing in the record, on either defendant's case or on the People's presentation, to support the Hearing *655 Judge's finding that Officer McGovern "was told that it [defendant's canvas bag] had been opened and a bag of white pills taken out." It was, therefore, error to deny suppression.

Order reversed, etc.