
    The People of the State of New York ex rel. Jose Machuca, Appellant, v. Albert Glick, as Warden of Manhattan House of Detention, Respondent.
   Judgment, Supreme Court, New York County entered on November 26, 1971, dismissing, after a hearing, relator’s petition for a writ of habeas corpus in the nature of a bail application and denying relator bail, affirmed. Relator was indicted for the crimes of murder and felonious possession of a gun. Several witnesses to the homicide testified before the Grand Jury and named the defendant as the person who committed the crime. One of the witnesses stated the defendant expressed his intention to kill the deceased shortly before the murder. The relator gave a false home address at the time of his arrest. A friend of the defendant, who was allegedly with the defendant at the time of the shooting, has departed to Puerto Rico. The defendant has a prior conviction involving automobile theft. Supplemental papers submitted post argument at the request of the parties with the consent of the court, specifically the affidavit of defendant Jose Machuca verified February 17, 1972 with attached exhibits, when read in conjunction with the affidavits of Jonathan Lovett, assistant district attorney, verified February 22, 1972, Detective James Rodriguez verified February 18, 1972, and Irving B. Vogel, a clerk in the office of the District Attorney, verified February 22, 1972, indicate substantial questions of fact with reference to defendant’s alleged employment. It was well within the discretion of the court below to deny hail in the circumstances. Concur—Kupferman, J. P., McNally, Steuer and Tilzer, JJ.; Murphy, J., dissents in the following memorandum: The record before us substantiates appellant’s contention that bail should have been set. In the exercise of its discretion the court is limited to the record before it at the bail hearing and cannot accept as true argument which is not supported in that record. I would set bail at $10,000. (CPL 510.30.)  