
    The People of the State of New York, Appellant, v Stephen Licastri and Richard L. Del Pesce, Respondents.
   Appeal by the People from an order of the Supreme Court, Richmond County, dated May 26, 1977, which, after a hearing, granted defendants’ motion to suppress certain physical evidence. By order dated April 3, 1978, this court remanded the case to Criminal Term "to hear and report on the issue of the information acted on by the police” and the appeal has been held in abeyance in the interim (People v Licastri, 62 AD2d 1002). Order affirmed. On December 1, 1978 the Court of Appeals decided People v Havelka (45 NY2d 636, 639), wherein it was stated: "The Appellate Division found the evidence offered at the suppression hearing insufficient to justify the challenged police action, and, holding the appeal in abeyance, remitted the case for a rehearing, giving the People the opportunity to offer further evidence. After the rehearing the lower court adhered to its initial determination, and the Appellate Division affirmed both the order denying the motion and the judgment of conviction. The primary issue is whether it was proper for the court to remit the case for a second hearing.” It was held that the remission was improper. The essential facts were similar to those at bar. The evidence adduced at the second hearing in this case was available to the People at the time of the first hearing. Two full hearings were accorded to the People, a result found to be improper in People v Havelka (supra). Accordingly, we affirm the order of suppression. Hopkins, J. P., Suozzi, Margett and Hawkins, JJ., concur.  