THE PEOPLE OF THE STATE OF NEW YORK, res, v. LAMONT MCCORKLE, def-ap

11152. THE PEOPLE OF THE STATE OF NEW YORK, res, v. LAMONT MCCORKLE, def-ap — Robert S. Dean, Center for Appellate Litigation, New York (Katharine Skolnick of counsel), for ap — Cyrus R. Vance, Jr., District Attorney, New York (Christopher P. Marinelli of counsel), for res ——Judgment, Supreme Court, New York County (Laura A. Ward, J.), rendered September 24, 2012, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the fourth degree, and sentencing him to a term of six months, with 4 1/2 years probation, unanimously affirmed. The matter is remitted to Supreme Court, New York County, for further proceedings pursuant to CPL 460.50(5).

The court providently exercised its discretion in reopening the suppression hearing, after both sides had rested and submitted legal arguments but before any decision on the merits had been made, to allow the People’s witness to provide additional testimony establishing the legality of the police conduct (see People v. Brujan, 104 AD3d 481 [1st Dept 2013] lv denied 21 NY3d 1014 [2013]). “A request to present additional evidence in this type of situation should be addressed to the court’s discretionary power to alter the order of proof within a proceeding (see People v. Whipple, 97 NY2d 1, 6 [2001]), rather than being governed by the restrictions on rehearings set forth in People v. Havelka (45 NY2d 636 [1978])” (id. at 481).