47 A.D.2d 664 | N.Y. App. Div. | 1975
Upon this appeal by defendant from a judgment of the County Court, Nassau County, rendered July 23, 1973, convicting him of seven counts of forgery in the second degree and other crimes, upon a jury verdict, and imposing sentence, this court previously remanded the case to the County Court for a hearing and ordered the appeal held in abeyance in the interim. The County Court has held the hearing and has made an order thereon, entered June 19, 1974, which order is herewith reviewed together with the appeal from the judgment. Judgment and order affirmed and the case is remitted to the County Court, Nassau County, for proceedings to direct appellant to surrender himself to said court in order that execution of the judgment be commenced or resumed (GPL 460.50, subd. 5). Prior to trial defendant moved to suppress certain business records. Following a hearing the County Court found that seven copies of notices of mechanic’s liens had been illegally obtained and were inadmissible. However, at the trial the People introduced certified copies of the same notices of mechanic’s liens, which had been obtained from the County Clerk’s office. They were admitted into evidence on the theory that they were not, physically, the same as the notices which had been suppressed. Defendant was convicted and sentenced. He appealed to this court and, by order dated February 4, 1974 this court remanded the case to the trial court for a hearing “ at which the People would be required to establish that the copies being used had not been come at by exploitation of the illegally seized evidence or by means sufficiently distinguishable to be purged of the primary, taint ” (People v. Roberts, 43 A D 2d 947). At the conclusion of the remand hearing the County Court held “that the certified copies of the mechanics [sic] liens introduced into evidence at trial were not the fruit of the poisonous tree, and were not subject to suppression on the tirai.” We agree. The record reveals that, through complaints filed with the District Attorney’s office, the names of defendant’s corporations were discovered, that the investigation of these complaints began well in advance of the illegal seizure, that defendant’s employee told the investigators which corporations had filed notices of mechanic’s liens, that the District Attorney’s office knew the notices were indexed at the County Clerk’s office and that, by reviewing the records of the County Clerk, which would only have taken about one hour, the notices would have been discovered. The prosecutor candidly told the trial court that information relating to the locating of five of the seven notices of mechanic’s liens, which formed the basis of the indictment, had been obtained from the suppressed documents. Hence this is not a ease where because the District Attorney learned of the evidence from an independent source the exclusionary rule has no application (Silverthorne Lbr. Co. v. United States, 251 U. S. 385). Nor is this a case in which the connection between the lawless
