Opinion
January 12, 1967
Appeal from the Erie County Court.
Present — Bastow, J.P., Goldman, Henry, Del Vecchio and Marsh, JJ.
Appeal held, decision reserved and matter remitted to Erie County Court for further proceedings in accordance with the memorandum herein. Memorandum: Appellants have been convicted following trial of violations of sections 986-b (possession of book-making records) and 812 (attempt to destroy evidence) of the Penal Law. Pretrial motions were made to suppress certain evidence seized pursuant to a search warrant. The order denying these motions is presented for review on this appeal. It was revealed by one of the affidavits upon which the search warrant was issued that certain telephone conversations (set forth verbatim) had been intercepted pursuant to authority granted by a court order (Code Crim. Pro., § 813-a). Upon the main trial defense counsel were denied the right to examine and make use of the intercept order and the papers upon which it was based. After the conclusion of the trial People v. McCall ( 17 N.Y.2d 152) was decided. In the light of the holdings therein the denial of defendants' application to examine the intercept order and supporting papers was error. Appellants contend that this error mandates a reversal of the judgments. We conclude, however, that the preferable procedure is to remand the action to the trial court for a hearing, (cf. People v. McDonnell, 18 N.Y.2d 509) prior to which there should be made available to defendants copies of the intercept order of July 9, 1964 and all relevant papers upon which it was based. Thereafter, a determination should be made as to the validity of the intercept order in the light of People v. McCall, ( supra) and other applicable decisions. If it should be determined that such order was invalid then further consideration should be given and a determination made as to what extent, if any, this may have infected the validity of the search warrant. (Cf. People v. Rodriguez, 11 N.Y.2d 279, 286.)