
    The People of the State of New York, Respondent, v Ismael Mercado, Appellant.
    Argued May 9, 1984;
    decided June 7, 1984
    
      APPEARANCES OF COUNSEL
    
      Stephanie T. Knowles and William E. Hellerstein for appellant.
    
      Mario Merola, District Attorney (Stuart L. Sanders and Peter D. Coddington of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The court did not abuse its discretion as a matter of law in denying the defendant’s motion to reopen the suppression hearing. A court is not bound to grant a motion to reopen in order to entertain a new issue based on a decision announced after the motion to suppress has been denied (People v Grosfeld, 58 NY2d 887). Here, as in Grosfeld, the defendant failed to meet the threshold requirement for such relief because he did not establish a factual predicate at the hearing to support his contention that the warrant-less arrest violated his rights under Payton v New York (445 US 573), and this defect was not cured by the papers he submitted on the motion to reopen. Under these circumstances the retroactivity of Payton is irrelevant (People v Grosfeld, supra), as are the trial court’s beliefs or observations concerning retroactivity (People v Kaminski, 58 NY2d 886).

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order affirmed in a memorandum.  