Chief Judge FULD. Seven defendants were adjudged guilty of crimes of conspiracy and bribery following a jury trial and, on appeal, the Appellate Division reversed and ordered a new trial ( 33 A.D.2d 67), holding that the affidavit, relied on by the District Attorney to procure search warrants, was insufficient. The People took an appeal to our court, following a grant of leave but, before that appeal was perfected, the Appellate Division, upon the District Attorney's application, granted a reargument with respect to the defendant Wheatman ( 33 A.D.2d 1107). Upon the reargument, the court reversed itself and affirmed that defendant's conviction on the ground that he lacked standing to challenge the validity of the warrants or the lawfulness of the subsequent search and seizure ( 34 A.D.2d 3). Thus, we have before us an appeal by the People as to six of the defendants and an appeal by the seventh defendant, Wheatman. Since the People's appeal poses the central issue to be decided — namely, the sufficiency of the District Attorney's affidavit and the admissibility of documents introduced into evidence — we consider that appeal first.
See, e.g., Cavalcante, 85 N.J. Super. 320, 204 A.2d 621 (Super. Ct.Law Div. 1964) (injuries suffered in an automobile accident following several hours of drinking and dancing); Robards v. New York Div. Elec. Prods., Inc., 33 A.D.2d 67, 307 N.Y.S.2d 599 (App. Div. 1970) (injuries suffered in an auto accident following activity of playing pool and drinking); Schneider v. United Whelan Drug Stores, 284 A.D. 1072, 135 N.Y.S.2d 875 (App. Div. 1954) (death benefits approved for next of kin of worker who drowned following boating accident during a layover); Slaughter v. State Accident Ins. Fund Corp., 60 Or. App. 610, 654 P.2d 1123 (Ct.App. 1982) (injuries suffered by a long-haul truck driver during a fight in a bar during a layover); Roadway Express, Inc. v. Workmen's Compensation Appeal Bd. (Seeley), 110 Pa. Commw. 619, 532 A.2d 1257 (Commw. Ct. 1987) (injuries suffered by over-the-road truck driver struck by a motorist while walking across a highway to his motel following several hours of drinking and eating at a bar-restaurant), appeal denied, 519 Pa. 662, 546 A.2d 623 (1988).
Of the other defendants, we note that Campbell pleaded guilty before trial; that, as to Fishbein, Barron, Nolan and Rarback, the jury failed to reach a verdict; and Goldman and Lowell were not tried, the court having directed a severance. Upon appeal, the Appellate Division reversed the conviction of the appellants Jerome, Spector and Marcus (and their companies) and ordered a new trial; it was the court's conclusion that the seizure of certain documents, received in evidence upon the trial, was illegal because of the insufficiency of the affidavit on which search warrants were issued ( 33 A.D.2d 67). The court affirmed appellant Wheatman's conviction, concluding that he lacked standing to challenge the validity of the warrants or to question the admissibility of the evidence ( 34 A.D.2d 3 [on reargument]). On the People's appeal to our court, we decided that the affidavit on which the search warrants had been issued was sufficient; accordingly, we reversed the Appellate Division's order and remitted the case to that court for consideration of the appellants' points on the merits ( 29 N.Y.2d 337). On Wheatman's appeal, we withheld determination, believing it desirable to pass upon the merits of his case along with those of the other appellants if, on remand, the Appellate Division affirmed their convictions.
February 10, 1972 On remand from the Court of Appeals ( 29 N.Y.2d 337) we have considered the points raised by the defendants, other than Wheatman, and find them without merit, and accordingly we unanimously affirm the judgments of the Supreme Court, New York County, rendered May 24, 1968, as to defendants Jerome, Spector, Jered and Dunrite, and the judgments of said court rendered June 20, 1968, as to defendants Marcus and Marcus Decorating. (See People v. Wheatman, 33 A.D.2d 67; People v. Wheatman, 34 A.D.2d 3.) Defendants' reliance on People v. Wyler ( 37 A.D.2d 375) is misplaced. On the undisputed facts in the cited case, the witness was an accomplice as a matter of law.
On the application of the District Attorney during the February 1970 Term, we granted reargument of the appeal with reference to defendant Wheatman ( 33 A.D.2d 1107). The judgments of conviction herein were previously reversed on the law, and a new trial directed, Justices McNALLY and TILZER dissenting, ( 33 A.D.2d 67) and voting to affirm. The reversal was grounded on the invalidity of the search warrant and the suppression of the evidence discovered.
In this instance, there was certainly enough to establish for the Magistrate issuing the warrant both the reliability of the source of the information and the reliability of the information itself. The foregoing discussion would dispose of the motion here under consideration, were it not for the decision in People v. Wheatman ( 33 A.D.2d 67 [1st Dept., 1969]). In that case, as in the instant case, a search warrant was issued on the basis of an affidavit by an Assistant District Attorney that he had heard sworn testimony of "a number of witnesses" (unidentified) before a Grand Jury investigating crimes of bid rigging, bribery of public officers, bribery of labor representatives, extortion, etc., in which they stated that they were parties to an agreement to rig bids at the City Housing Authority which involved receipt of information from Housing Authority employees as to estimated man-days it should take to paint certain portions of Housing Authority projects.