
    The People of the State of New York, Respondent, v. John Rivera, Appellant.
    Argued June 1, 1967;
    decided June 15, 1967.
    
      J. Jeffrey Weisenfeld and Anthony F. Marra for appellant.
    
      Frank S. Hogan, District Attorney (Michael Juviler and H. Richard Uviller of counsel), for respondent.
   Judgment reversed and case remitted to the Supreme Court, New York County, for a hearing on the motion to suppress for the following reasons: Where, as here, defendant’s affidavit in support of his motion to suppress satisfies however meagerly the standards set down in rule IV (subd. 3, par. [h]) of Part 2 of the Buies of the Supreme Court, Bronx and New York Counties, section 813-c of the Code of Criminal Procedure mandates a hearing into any issue of fact necessary to determination of the motion. Since the District Attorney erroneously believed the application to be insufficient on its face and, therefore, failed to submit an affidavit in opposition thereto, it was error to deny the motion to suppress without a hearing. (See People v. Malinsky, 15 N Y 2d 86, 91, n. 2 [1965].)

Concur: Chief Judge Fuld and Judges Van Voorhis, Bubke, Bergan and Keating. Judge Scileppi dissents and votes to affirm. Taking no part: Judge Breitel.  