36 A.D.2d 898 (1971)

The People of the State of New York, Respondent, v. Dolores Miller, Appellant

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

April 8, 1971

Judgment unanimously reversed on the law and facts and indictment dismissed.


Defendants appeal from their conviction on four counts of abortion after jury trial in Erie County Court. The appeal was held pending remission of the cases to that court for a hearing to determine the validity of certain telephone and wiretap orders upon defendants' residence and whether evidence essential to the convictions which was received into evidence was infected as the "fruits" of unlawful eavesdropping (28 A.D.2d 1205, 1206; 30 A.D.2d 773). The hearing was held before a Judge of that court who has found and reported to us that the necessary evidence for the convictions was obtained through use of eavesdropping orders which were based upon affidavits lacking facts sufficient to establish reasonable grounds for believing that defendants were committing a crime in their home (Matter of Sarisohn, 21 N.Y.2d 36, 42; People v. McDonnell, 18 N.Y.2d 509; People v. McCall, 17 N.Y.2d 152; cf. People v. Kaiser, 21 N.Y.2d 86). We have reviewed such documents and the testimony presented upon the hearing, and find that they support the conclusion of the hearing Judge. There being no other evidence to support the judgments, they must be reversed and the indictment dismissed.


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