
    The People of the State of New York, Respondent, v Emerson Haynes, Appellant.
    [683 NYS2d 460]
   —Case held, decision reserved and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Defendant was convicted following a jury trial of criminal possession of marihuana in the second degree (Penal Law § 221.25). The conviction arises from defendant’s alleged possession of more than 16 ounces of marihuana that the police seized upon execution of a search warrant at defendant’s residence. The search warrant authorized the police to search the premises located at “1008 E. Ferry St. upper rear apartment, Bflo 2V2 story yellow wood frame dwelling and business”. It is undisputed that the police searched the third floor attic at the premises and seized a quantity of marihuana that was included in the indictment to arrive at the required felony weight. Defendant contends that the warrant did not authorize the search of any premises outside of the upper rear apartment. Supreme Court erred in denying defendant’s request for a hearing on that issue. In its decision, the court determined that “the attic apartment which was accessible only through the upper rear apartment was an area of the premises authorized to be searched by the terms of the warrant”.

Although the testimony at both the pretrial Huntley hearing and at trial appear to contradict the court’s determination that the attic apartment was accessible only through the upper rear apartment, we cannot decide that issue based upon that testimony (see, People v Dodt, 61 NY2d 408, 417). Therefore, we hold the case, reserve decision and remit the matter to Supreme Court for a suppression hearing on that issue (see, People v Giles, 73 NY2d 666, 671-672).

We have reviewed the remaining issues, including those raised in defendant’s pro se supplemental brief, and conclude that they are without merit. (Appeal from Judgment of Supreme Court, Erie County, Cosgrove, J. — Criminal Possession Marihuana, 2nd Degree.) Present — Denman, P. J., Hayes, Pigott, Jr., Callahan and Fallon, JJ.  