
    The People of the State of New York, Respondent, v Monroe Grosfeld, Appellant.
    Argued January 4, 1983;
    decided February 15, 1983
    
      APPEARANCES OF COUNSEL
    
      John L. Pollok and Annette Ferstenberg for appellant.
    
      John J. Santucci, District Attorney (Barbara Goldberg of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The record of the suppression hearing contains no evidence or factual findings supporting the defendant’s contention that the police illegally entered his home to take him into custody. Neither can it be said that the suppression court abused its discretion as a matter of law in denying the defendant’s motion to reopen the hearings following the Supreme Court’s decision in Payton v New York (445 US 573) since the defendant made no allegations of fact or offer of proof demonstrating the relevance of that decision to the circumstances of his case. Thus, although the Payton decision is entitled to retroactive effect (United States v Johnson, 457 US 537), there is no factual predicate for concluding that the defendant’s rights as announced in that decision have been violated (cf. People v De Mauro, 48 NY2d 892, 893; People v Charleston, 54 NY2d 622; People v Friola, 11 NY2d 157, 160).

We have considered the defendant’s other contentions and find no basis for reversing the conviction.

Meyer, J.

(dissenting). During the original suppression hearing defendant’s attorney asked for specific findings as to whether the Trial Judge accepted the police officer’s version or defendant’s version of what took place when he was arrested. Several months later, after the Supreme Court decided Payton v New York (445 US 573), he moved to reargue and during the colloquy on that motion he suggested that the court “find more of the .circumstances of how the arrest was made and how entry was gained by the police officer” and posed the question “whether or not there was a consent to having him come into the house or whether or not he came in because of the authority of his badge.”

The Trial Judge refused to make findings on that issue because he ruled that Payton was not to be given retroactive effect. He granted defendant’s motion for reconsideration but adhered to his original denial of suppression, but did so not in the exercise of discretion but on the basis of an erroneous ruling on the law. I would, therefore, remit for the making of additional findings and, because the People were denied the opportunity to put in opposing evidence by the retroactivity ruling, for the taking of additional evidence as well.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Simons concur; Judge Meyer dissents and votes to reverse in a separate memorandum in which Judge Fuchs-berg concurs.

Order affirmed, in a memorandum.  