
    The People of the State of New York, Respondent, v. Fred Alfred Barry, Appellant.
   Appeal by defendant from a judgment of the Supreme Court, Queens County, entered November 22, 1963 after a jury trial, convicting him of felonious possession of a narcotic drug (Penal Law, § 1751), and imposing sentence. Action remitted to the trial court for further proceedings in accordance with this decision. In the interim, the pending appeal in this court will be held in abeyance. The remission is for the purpose of holding a hearing and making findings of fact upon the issues raised by the defendant’s motion to suppress evidence. In our opinion, such motion was improperly denied without a hearing and without findings (People v. Malinsky, 15 N Y 2d 86; People v. Lombardi, 18 A D 2d 177, affd. 13 N Y 2d 1014; cf. People v. Mercado, 24 A D 2d 609; cf. People v. Walton, 24 A D 2d 640). The hearing should be held before the court without a jury; and the subsequent procedure should be in accord with the procedure prescribed in People v. Bischone (24 A D 2d 575) and in People v. Walton (24 A D 2d 640, supra). Ughetta, Acting P. J., Brennan, Rabin, Hopkins and Benjamin, JJ., concur.  