People v. King

Murphy, J. (dissenting).

Since the instant application is being heard pursuant to leave granted by Mr. Justice Kupferman (Judiciary Law, § 149, subd 2), it appears somewhat incongruous, and perhaps even improper, to refer any portion thereof back to the Justice appointed to preside over the Extraordinary Special and Trial Term. But in any event, and on the merits, I would go further than my colleagues in granting relief to defendant King.

It is alleged, and not seriously disputed, that the presenta*461tion before the Extraordinary Grand Jury commenced well before the instant indictment and dealt primarily with the celebrated "French Connection” heroin theft from the office of the Police Property Clerk and other alleged police corruption. Aside from the barrage of publicity to which the grand jurors were subjected (irrespective of who was the originator), several members of defendant’s family, among others, were called as witnesses and all phases of defendant’s life, including personal records, were assertedly subjected to the utmost scrutiny. The Special Prosecutor concedes that "the instant indictment of course relates to the narcotics theft case since it is precisely the ongoing corrupt relationship between defendants King and Papa and their corrupt relationship with others connected with the instant indictment that the drug thefts under investigation were effectuated.”

Where, as here, there are sufficient grounds to believe that defendant has been subject to a pervasive prejudicial inquisition into his life and conduct with reference to irrelevant matters, the least this court should, do (even assuming, arguendo, the absence of reasonable cause to believe the evidence presented was legally insufficient) is to grant the motion and examine the minutes. (CPL 210.30, subd 4, par [b]; cf. United States v Whitted, 325 F Supp 520.)

Moreover, in light of the serious allegations of prosecutorial misconduct contained therein, it is insufficient for the prosecutor, who vigorously opposes that branch of the application which seeks inspection of the Grand Jury minutes, to summarily assert that "the Grand Jury was fairly and thoroughly instructed on the applicable legal principles relating to the instant charges” by referring to certain pages of said minutes that only he has seen. It is for this court, not the prosecutor, to make such determination. And certainly the conclusory affidavit of the Grand Jury foreman, in which he opines "that the grand jurors heeded these admonitions and based their decision only on the evidence before them” really points to the necessity for an objective reading of the minutes and should not deter us from our responsibility in this matter. Accordingly, that branch of the motion which requests inspection of the Grand Jury minutes by this court should be granted.

Insofar as the balance of the application is concerned I would, currently, grant (to the extent not already furnished or required to be furnished hereunder) pretrial discovery and inspection of the items referred to in subdivisions "a”, "b”, *462"f”, "h”, "i” and "j” of paragraph "Twentieth” and the particulars requested in subdivisions "(a)”, "(b)”, "(c)”, "(d)”, "(e)”, "(f)” and "g” of paragraph "Twenty-First”, and in paragraphs "Twenty-Second” and "Twenty-Fourth”, of applicant’s principal moving affidavit. I disagree with the majority’s conclusion that these items should be denied as prematurely sought or essentially requiring the People to recite matters of evidence. In my view, the items above referred to "are necessary to enable this defendant adequately to prepare or conduct his defense.” (CPL 200.90, subd 3.)

Additionally, I would grant the motion insofar as it requests striking the last sentence of the fourth paragraph of the indictment, which alleges that "defendant Papa was arrested and had in his possession nearly one million dollars in cash.” This assertion, which will be read to the trial jury, is clearly unnecessary and highly prejudicial. If relevant, such fact may be introduced into evidence at the trial; but it is improperly pleaded in the indictment when it states "allegations of an evidentiary nature”. (CPL 200.50, subd 7.)

Finally, since it now appears (from the supplemental affidavits submitted hereon) that defendant King’s attorney was also the subject of an eavesdropping warrant and order, I would direct the Special Prosecutor to supply defendant with an affirmation setting forth all surveillance data obtained by eavesdropping through electronic means, whether by warrant or otherwise, including eavesdropping of defense counsel; together with copies of all eavesdropping warrants and orders and affidavits in support thereof.

Since the data sought may contain prejudicial or privileged matter, I would direct the Special Prosecutor to provide defense counsel with transcripts and copies of tapes, sealed and in camera; and allow counsel to listen to the original tapes at the Special Prosecutor’s office at a mutually agreeable time. (Cf. People v Steinman, 44 AD2d 839.) In such connection, I also deem it appropriate, before concluding, to reaffirm the principle that any intrusion upon the fundamental right to assistance of counsel by electronic surveillance cannot be tolerated, and has indeed been previously condemned, by free society. (Coplon v United States, 191 F2d 749, cert den 342 US 926.)

Markewich, J. P., and Tilzer, J., concur with Lane, J.; Kupferman and Murphy, JJ., dissent in an opinion by Murphy, J.

*463Application of defendant, Frank E. King, insofar as it seeks discovery of electronic surveillance tapes and identification materials, denied, without prejudice to renewal before the trial court; and said application in all other respects is denied.