PEOPLE v. MERCADO

MEMORANDUM.

The order of the Appellate Division should be affirmed.

The court did not abuse its discretion as a matter of law in denying the defendant's motion to reopen the suppression hearing. A court is not bound to grant a motion to reopen in order to entertain a new issue based on a decision announced after the motion to suppress has been denied ( People v Grosfeld, 58 N.Y.2d 887). Here, as in Grosfeld, the defendant failed to meet the threshold requirement for such relief because he did not establish a factual predicate at the hearing to support his contention that the warrantless arrest violated his rights under Payton v New York ( 445 U.S. 573), and this defect was not cured by the papers he submitted on the motion to reopen. Under these circumstances the retroactivity of Payton is irrelevant ( People v Grosfeld, supra), as are the trial court's beliefs or observations concerning retroactivity ( People v Kaminski, 58 N.Y.2d 886).

Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur.

Order affirmed in a memorandum.