People v. Pomponio

64 A.D.2d 930, 407 N.Y.S.2d 976, 1978 N.Y. App. Div. LEXIS 12817

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 14, 1978
• Status: Published

Opinion

—Appeal, as limited by the People’s brief, from so much of an order of the County Court, Westchester County, dated March 16, 1978, as, upon defendant’s motion to dismiss the indictment, dismissed Counts Nos. 1, 2, 3, 4, 6, 7, 10 and 11. Order modified, on the law, by deleting therefrom the provisions which dismissed Counts Nos. 1, 3, 7 and 10 of the indictment, and substituting therefor a provision denying the motion as to those counts. As so modified, order affirmed insofar as appealed from, and case remitted to the County Court, Westchester County, for further proceedings with respect to Counts Nos. 1, 3, 7 and 10. The defendant is charged with 11 counts of criminal contempt in the first degree (see Penal Law, § 215.51), in that answers he gave to the Grand Jury were so false and evasive as to be tantamount to no answers at all. The County Court dismissed Counts Nos. 2 through 11 of the indictment as legally insufficient. The People concede that this was proper with respect to Counts Nos. 5, 8 and 9. The court found Count No. 1 to be legally sufficient, but dismissed it as the fruit of illegal eavesdropping, since the eavesdropping warrant was issued without the requisite probable cause. A review of the papers submitted to the court in support of the application for the eavesdropping warrant, reveals that there was sufficient probable cause to support issuing the warrant. Therefore, Count No. 1 of the indictment is reinstated. An examination of the remainder of the indictment shows that Counts Nos. 3, 7 and 10 are legally sufficient and should not have been dismissed. Martuscello, J. P., Latham, Rabin and Hawkins, JJ., concur.