People v. Liberatore, 1

• Decision Date: 16 November 1990
• Docket Number: No. 1,1
• Citation: 167 A.D.2d 955,562 N.Y.S.2d 297
• Parties: PEOPLE of the State of New York, Respondent, v. John LIBERATORE, Appellant. Appeal
• Court: New York Supreme Court — Appellate Division

Page 297

562 N.Y.S.2d 297

167 A.D.2d 955

PEOPLE of the State of New York, Respondent, v. John LIBERATORE, Appellant. Appeal No. 1.

Supreme Court, Appellate Division, Fourth Department.

Nov. 16, 1990.

David Foster, Geneva, for appellant.

R. Michael Tantillo by Jeffrey Taylor, Canandaigua, for respondent.

Before DILLON, P.J., and CALLAHAN, GREEN, BALIO and DAVIS, JJ.

MEMORANDUM:

The Hearing Court erred in denying defendant's motion to suppress all evidence obtained as a result of the eavesdropping warrants and search warrants. The People did not furnish defendant with a copy of the affirmed statement of an undisclosed confidential informant that was part of the application for an eavesdropping warrant submitted to the issuing Magistrate. The People, therefore, failed to comply with the notice provision of CPL 700.70 and made "neither an application for an extension of time within the fifteen days provided in that statute nor a showing of good cause for noncompliance and lack of prejudice to defendant" ( People v. Schulz, 67 N.Y.2d 144, 147, 501 N.Y.S.2d 12, 492 N.E.2d 120; see also, People v. Mark, 68 A.D.2d 315, 318, 417 N.Y.S.2d 149).

Further, since it cannot be said that defendant's guilty plea was not affected by the Hearing Court's error, we are unable to conclude that it was harmless (see, People v. Grant, 45 N.Y.2d 366, 379-380, 408 N.Y.S.2d 429, 380 N.E.2d 257). Accordingly, we vacate defendant's guilty plea.

Judgment unanimously reversed on the law, motion to suppress granted, plea vacated, and matter remitted to Ontario County Court for further proceedings on the indictment.