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People v. Habel

18 N.Y.2d 148 Court N.Y. Decision date 1966-07-07 English

Judges Chief Judge Desmond and Judges Full, Van VooRhis, Burke, Scileppi, Bergan and Keating concur.

Contents

Majority

p. 148
The People of the State of New York, Respondent, v. Henry Habel, Arthur McGovern, Kenneth Burkard, Julio Rodriguez and Morgan Seifert, Appellants, et al., Defendant.
Argued June 2, 1966;
decided July 7, 1966.
p. 149
Vincent J. Fuller, Henry Mayer, Jerome Wenig, Harold Tingar and Raymond W. Bergcm for Henry Habel, Arthur McGovern and Julio Rodriguez, appellants.
Victor Rabinowits, Samuel A. Neuburger, Leonard B. Boudin and Henry Winestine for Morgan Seifert and Kenneth Burkard, appellants.
p. 150
Frank S. Hogan, District Attorney (Michael Juviler and H. Richard Uviller of counsel), for respondent.
p. 151
John J. McAvoy for New York Civil Liberties Union, amicus curies.

To pursue the special kind of appeal allowed ‘ ‘ notwithstanding ’ ’ a plea of guilty by the third paragraph of section 813-c of the Code of Criminal Procedure, conditions prescribed by that section must be met.

This kind of an appeal is authorized when taken from the denial of a motion for the return or suppression of property, papers or things “ unlawfully obtained ” which may be used in evidence in a criminal proceeding against the moving party. ■

Recordings of conversations made pursuant to judicial orders authorizing eavesdropping under section 813-a of the Code of Criminal Procedure are not such property “unlawfully obtained” and a party aggrieved by a denial of a motion addressed to such recordings is left to appeal under the general avenues open in criminal cases. On the concession of the District Attorney, appellants may, if they are so advised, withdraw their pleas of guilty.

The dismissal of the appeal by the Appellate Division was a final determination affecting a substantial right and the appeal to this court was properly allowed and is considered on the merits (Code Crim. Pro., § 519, subd. 5; People v. Pitts, 6 N Y 2d 288 ; People v. Pride, 3 N Y 2d 545 ).

The orders should be affirmed.

Chief Judge Desmond and Judges Full, Van VooRhis, Burke, Scileppi, Bergan and Keating concur.

Orders affirmed.

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