Opinion
Argued June 1, 1970
Decided July 1, 1970
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, PAUL J. WIDLITZ, J.
Donald J. Farinacci, James J. McDonough and Matthew Muraskin for appellant.
William Cahn, District Attorney ( Henry P. DeVine of counsel), for respondent.
In a habeas corpus proceeding brought by a codefendant of the appellant Zundel, the United States Supreme Court held that numerous books and other papers received upon the trial (in 1960) had been unconstitutionally seized and should not have been admitted in evidence. (See Mancusi v. De Forte, 392 U.S. 364, affg. United States ex rel. De Forte v. Mancusi, 379 F.2d 897.) Since, on the record before us, it is impossible to say — as we must were we to affirm — that the receipt of such illegally obtained evidence was "harmless beyond a reasonable doubt" ( Chapman v. California, 386 U.S. 18, 24; see, also, Harrington v. California, 395 U.S. 250, 251-252), the appellant's conviction must be reversed and the case remitted to the County Court of Nassau County for a new trial.
The judgment of conviction should be reversed and a new trial ordered.
Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN, BREITEL, JASEN and GIBSON concur in Per Curiam opinion.
Upon reargument by defendant Zundel: Judgment as to defendant Zundel reversed and a new trial ordered.