Opinion
July 1, 1966
Present — Williams, P.J., Bastow, Goldman and Henry, JJ.
Motion for reargument granted, upon reargument judgment unanimously reversed on the law and facts and in the interests of justice and new trial granted. Memorandum: Appellant and three codefendants, English, Corley and McCall, were convicted following a joint trial of the felony of conspiracy (Penal Law, § 580-a). Thereafter we affirmed the judgments of conviction of all four defendants ( 21 A.D.2d 752; 22 A.D.2d 761). English, Corley and McCall were granted leave to appeal to the Court of Appeals and the judgments as to them were reversed and a new trial ordered ( 17 N.Y.2d 152). The appellant, however, according to her petition, was denied leave to appeal. The ground for the reversal of the other judgments was that the affidavits on which telephone wire-tap orders had been obtained (Code Crim. Pro., § 813-a) were insufficient and evidence obtained thereby should have been suppressed. Such tainted evidence the Court of Appeals stated "form[ed] the very core of the case" ( 17 N.Y.2d 152, 160). Thereafter, the indictment as to these defendants was dismissed in Onondaga County Court with the consent of the District Attorney. Appellant is presently confined under the imposed sentence. In the interests of justice she is entitled to a new trial.