People v. Miller

Motion for reargument of appeal denied. Memorandum: We heretofore directed reargument of this appeal (28 A D 2d 819). Such reargument was had prior to the decision in People v. Kaiser 21 NY 2d 86). Counsel for the respective parties at the reargument agreed that counts two, four and five of the indictment should be dismissed (cf. 28 A D 2d 1205). If we correctly understand the present motion permission is sought to withdraw the prior consent of the People that the stated three counts of the indictment should be dismissed. Such relief is granted. The previously directed hearing should be held without further delay in conformity with our prior memorandum (28 A D 2d 1205). In addition the trial *774court should make an adjudication as to whether the proof as to counts two, four and five (as well as count three) was fatally infected by the use of eavesdropping or bugging devices in the light of Berger v. New York (388 U. S. 41) People v. Kaiser (21 N Y 2d 86, supra), People v. Fino (29 A D 2d 227), and other relevant decisions. The District Attorney should promptly make available to defense counsel for inspection all wiretap and eavesdrop orders, as well as the affidavits upon which they were made; also transcripts of all recordings made from the use of such electronic devices all as directed in our memorandum (28 A D 2d 1205). Present — Williams, P. J., Bastow, Goldman, Del Vecchio and Henry, JJ.