
    The People of the State of New York, Respondent, v. Robert J. Manguso, Appellant.
   Appeal held and decision reserved on appeal from judgment of conviction. Order entered April 2, 1964 unanimously reversed and proceeding remanded to Erie County Court for further proceedings in accordance with memorandum. Memorandum: Defendant has been convicted following trial of unlawful entry and petit larceny. Prior to trial defendant by appropriate motion moved for the return of certain personal property (claimed by the People to be fruits of the crimes) seized by the police without a search warrant from a flat occupied by defendant and his mother. Section 813-e of the Code of Criminal Procedure provides that upon such an application the court shall hear evidence upon any issue of fact necessary to determination of the motion.” Such was not done herein and the motion was denied on affidavits submitted by the respective parties. These presented a sharp issue of fact as to whether Mrs. Piazza, the occupant of the lower apartment, had permission to enter the Manguso flat. If this question should be answered in the affirmative then an additional issue would be presented as to whether Mrs. Manguso had authority to grant such permission as to her son, the defendant. (Cf. Stoner v. California, 376 U. S. 483; Chapman v. United States, 365 U. S. 610; Calhoun v. United States, 172 F. 2d 457, cert. den. 337 U. S. 938; Stein v. United States, 166 F. 2d 851, cert. den. 334 U. S. 844; United States v. Sergio, 21 F. Supp. 553; see generally, Effective Consent to Search and Seizure, 113 U. of Pa. L. Rev. 260, 272-277.) Lastly, the court deciding the motion "is required to state, either by findings or in an opinion, the facts upon which it relies in granting or denying the motion.” (People v. Lombardi, 18 A D 2d 177, 180, affd. 13 N Y 2d 1014.) A hearing should be had at which witnesses may be produced. If requested, the defendant should be accorded the right to be present at the hearing in person and with counsel. Thereafter, a new determination should be made supported by appropriate factual findings. (Appeal from judgment of Erie County Court, convicting defendant of unlawful entry and petit larceny.) Present — Williams, P. J., Bastow, Goldman, Henry and Del Vecehio, JJ.  