People v. Berger

• Decision Date: 28 September 1967
• Citation: 20 N.Y.2d 801,284 N.Y.S.2d 456
• Parties: , 231 N.E.2d 132 The PEOPLE, etc., Respondent, v. Ralph BERGER, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 456

284 N.Y.S.2d 456

20 N.Y.2d 801, 231 N.E.2d 132

The PEOPLE, etc., Respondent, v. Ralph BERGER, Appellant.

Court of Appeals of New York.

Sept. 28, 1967.

Appeal from Supreme Court, Appellate Division, First Department, 25 A.D.2d 718, 269 N.Y.S.2d 368.

Indictment charged that defendant and others conspired to bribe a public officer attached to the New York State Liquor Authority with intent to influence him in respect to issuance of licenses to sell liquor at certain clubs located in New York County. The defendant made a motion to suppress evidence. The People stipulated that, without the evidence and leads obtained from eavesdropping devices which had been placed in two offices under authority of ex parte court orders issued pursuant to Section 813--a of the Code of Criminal Procedure, the District Attorney would have had no information on which to present a case against the defendant. The motion to suppress evidence was denied.

Defendant was convicted on two counts of conspiracy in violation of Section 580 of the Penal Law, Consol.Laws, c. 40.

The Supreme Court, Special and Trial Term, New York County, Mitchell D. Schweitzer, J., entered a judgment, and the defendant appealed.

The Appellate Division entered a judgment affirming the judgment of the Special and Trial Term.

The Court of Appeals, 18 N.Y.2d 638, 272 N.Y.S.2d 782, 219 N.E.2d 295, affirmed the judgment. Desmond, C.J., and Fuld, J., dissented and voted to reverse on the ground that the electronic eavesdrops inside two offices, one of which was a law office, were unconstitutional under the Fourth Amendment as a physical intrusion into private premises and as a 'general search' for evidence.

The United States Supreme Court, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040, reversed and remanded.

Motion was made in the Court of Appeals to amend the remittitur of the Court of Appeals to conform to the mandate of the Supreme Court of the United States.

Motion to amend remittitur of the Court of Appeals to conform to the mandate of the Supreme Court of the United States granted. Return of remittitur requested and, when returned, it will be amended to read as follows: Judgment reversed and a new trial ordered, at which trial all evidence obtained by eavesdropping shall be excluded.