In this case the question which is raised is whether the search warrant, which was executed by the People as the result of information obtained while listening to the conversations over the telephone for which they had an authorized wiretap order against one, Slayka, can be sustained where the information concerning the activities of Zorn, the defendant herein, was obtained during the course of a monitored conversation between him and Slayka. It appears, on the authority of People v. D’Amico (37 A D 2d 730) and People v. Gnozzo (64 Misc 2d 599, affd. 37 A D 2d 922) that whatever Zorn may have been overheard to say could not be used in a subsequent application for a search warrant because he was not mentioned in the original wiretap order which was directed only as against Slayka. As a matter of fact subdivision 4 of section 825 of the Code of Criminal Procedure (now CPL 700.65, subd. 4) provides that an application could have have been made by the People to amend the original wiretap order to include whatever Zorn was saying. This the People failed to do.
Accordingly, the evidence should be suppressed and the judgment reversed.
Nunez and Kupferman, JJ., concur with McNally, J.; Capozzoli, J., dissents in an opinion, in which Stevens, P. J., concurs.
Judgment, Supreme Court, New York County, rendered on March 23, 1971, affirmed.