33 A.D.2d 675 | N.Y. App. Div. | 1969
Judgment entered June 15, 1967, convicting defendant Peter Butler of the crime of murder in the first degree as a felony murder, affirmed. Determination withheld as to appeal from judgment similarly entered as to defendant Richard Conroy, and the matter remitted to the Supreme 'Court, New York County for an evidentiary and suppression hearing in accordance with People v. Morhouse (21 N Y 2d 66). In this case, at the beginning of the. trial, the 'District Attorney declared that no evidence or leads had been obtained from wiretaps and that no wiretap evidence would he offered. Upon' questioning by the 'Trial Judge, assurances were developed that the names of no witnesses had beep ^thus obtained. And the Trial Judge, finding that the supporting affidavits were adequate in respect of probable cause, denied the attorney for the defendants permission to examine the police, the order or the affidavits pursuant to which wiretap orders were obtained. On argument of this appeal, we requested production of the applying affidavits, the order, the resulting tapes and further briefs on the law and the facts. Upon this further submission, we have concluded that the representation of the District Attorney that no evidence or leads were, obtained from the wiretaps cannot deprive the defendant 'Conroy of at least an opportunity to test whether certain concededly illegal taps led to information which was improperly used at the trial. (People v. Munger, 24 N Y 2d 445.) As for the court order dated June 28, 1966, resulting in wiretapping between June 29, 1966 and July 15, 1966, we feel there may be a bare sufficiency of facts, independent of the anonymous phone call, to establish a basis for the reliability of the information divulged by the masked informer and thus sustain this order and preserve, it from the interdiction of People v. Horowitz (21 N Y 2d 55); (see, also, People v. Hendricks, 25 N Y 2d 129). However, even if this order was properly issued and used, there is still the concession of the District Attorney that the second wiretap, based on the affidavit of Lieutenant Sullivan, was patently invalid and that the wiretap operations of July 16, 17 and 18, 1966 were completely unauthorized. As to these latter wiretaps, a hearing is unavoidably in order, to determine whether they produced witnesses and evidentiary matter developed at the trial which stemmed from these extra-legal operations of the police and thus were inadmissible. Particularly, in fairness, there must be a hearing, because in point of chronology, the evidence that was educed at the trial, was clearly elicited, if not developed, only after the dates of these invalid wiretaps. The foregoing is not applicable or available to the defendant Butler because objection on constitutional grounds to the use of intercepted conversations obtained through eavesdropping devices is personal and limited to a party to the conversation or whose premises are involved. (See Alderman v. United, States, 394 U. S. 165; Matter of Selig, 32 A D 2d 213.) Further, in refusing to grant a new trial in the case of Butler, we are not unaware of the pertinency of People v. Rosario (9 N Y 2d 286). We note that at the outset of the trial, the District Attorney made no secret of his possession of certain tapes. But we feel the Rosario rule was not transgressed because we perceive no inconsistency between the actual testimony- of the witness Richardson on the stand and what she purportedly said in the tapes; the tapes, strictly speaking, did not relate to the subject of