Opinion
January 14, 1971
Appeal from the Wyoming County Court.
Present — Del Vecchio, J.P., Marsh, Witmer and Henry, JJ.
Judgment unanimously affirmed. Memorandum: Defendant's conviction of April 13, 1965 was affirmed by us. ( 25 A.D.2d 496.) Thereafter in a habeas corpus proceeding he sought a hearing to ascertain whether certain wiretap evidence against him, which the Trial Judge excluded, was a source of evidence upon which his conviction rests, that is, whether such evidence was tainted by the improper wiretap; and his application was denied. We affirmed that denial. ( 31 A.D.2d 890.) In reliance upon Alderman v. United States ( 394 U.S. 165), decided since the above denial, defendant again petitioned in this proceeding for the same relief, and again his petition was dismissed. In the Alderman case the defendants did not learn until long after their conviction that the People had improperly obtained evidence which may have served as leads to other evidence used upon the trial to convict them; and the court granted a hearing to the defendants so that they could ascertain whether tainted evidence was used upon the trial against them. In our view the case at bar is distinguishable from the Alderman case, because here the People sought to put into evidence upon the trial their wiretap evidence against defendant, and the court excluded it. Thus, at the trial defendant was aware of the existence of such wiretap evidence and had the opportunity to demand it for inspection and to examine concerning it before the conclusion of the trial, and to make such further objections and motions which he might then deem appropriate. In view of the history of this case, we see no reason to extend the principle of the Alderman case so as to grant defendant a further opportunity in this respect. Moreover, since the application is in all material respects the same as the prior one, with no new or additional evidence alleged, defendant is not entitled to a hearing (see People v. Sullivan, 4 N.Y.2d 472).