Opinion
June 26, 1967
Defendant appeals from (1) a judgment of the Supreme Court, Kings County, rendered April 20, 1965, which convicted her of abortion, on her plea of guilty, and sentenced her to a prison term of from one to two years and (2) an order of said court dated December 24, 1964, which denied her motion to controvert a search warrant and to suppress evidence obtained thereunder. The action is remitted to the trial court for a hearing and a determination, with specific findings, as to whether the Judge to whom the application for an eavesdropping order was made had reasonable grounds to issue it. In the interim, the appeals will be held in abeyance. The procedure prescribed in People v. Mullgrav ( 23 A.D.2d 855, 856) should be followed. In our opinion, it was error for the court at the hearing on the motion to controvert the search warrant to refuse to permit defendant to inspect the wiretap order and supporting affidavit (cf. People v. McCall, 17 N.Y.2d 152). It seems reasonably clear that the fruits of the wiretap order led to the issuance of the search warrant sought to be controverted. The existence of the wiretap order was unknown until the time of the hearing. Defendant's prior motion to inspect the Grand Jury minutes in an attempt to ascertain whether a wiretap order was issued and, if so, whether it was issued upon probable cause had been denied. The refusal of the court to permit defendant to examine the order and supporting papers has resulted in a record woefully inadequate to enable us to determine the vital question of whether the order was issued upon probable cause and whether there was compliance with the other requirements of section 813-a of the Code of Criminal Procedure. Under these circumstances a hearing is warranted to determine whether the order was properly issued (see People v. McDonnell, 18 N.Y.2d 509). Beldock, P.J., Ughetta, Rabin, Benjamin and Munder, JJ., concur.