I would expressly limit the scope of the remission to a hearing to determine whether there existed warrants of proper form and content authorizing the electronic surveillance involved here and whether such warrants are prima facie supported by proper affidavits or proofs and were properly executed. It is noted that the decision of the Supreme Court in Gelbard v. United States (408 U. S. 41), was rendered on the assumption that the ‘‘ communications were not intercepted in accordance with the specified procedures and thus that the witnesses’ potential testimony would be ‘disclosure’ in violation of [law] ” (p. 47). The court then noted that “ we need not decide whether Gelbard and Parnas may refuse to answer questions if the interceptions * * * were pursuant to court order.” (p. 61, n. 22). Furthermore, Mr. Justice White, in concurring, stated that he agreed “ that at least where the United States has intercepted communications without a warrant in circumstances where court approval was required, it is appropriate in construing and applying 28 U. S. C. § 1826 not to require the Grand Jury witness to answer and hence further the plain policy of the wiretap statute ” (p. 70; emphasis added).
*169Bearing in mind the circumstances of the particular crimes charged and on the record upon which the conviction was based, the determination of this appeal should depend on whether the electronic surveillance was authorized by duly issued warrants. I see no justification for a full evidentiary suppression hearing including the issue of probable cause.
Stevens, P. J., McGivern and Nunez, JJ., concur, with Murphy, J.; Eager, J., dissents in part in an opinion.
Determination of appeal from judgment, Supreme Court, New York County, rendered on December 16, 1971, withheld, and the case remitted for a hearing in accordance with the provisions of article 710 of the CPL, on the question of whether the eavesdropping warrants were properly issued. (Cf. People v. McDonnell, 18 N Y 2d 509.)