Opinion
February 22, 1977
Appeal by defendants from two judgments of the Supreme Court, Kings County (one as to each of them), both rendered September 11, 1975, upon a jury verdict, one convicting defendant Brooks of rewarding official misconduct, giving unlawful gratuities (three counts) and conspiracy in the third and fourth degrees, and imposing sentence, and the other convicting defendant Rubin of bribery, giving unlawful gratuities (three counts) and conspiracy in the fourth degree, and imposing sentence. Judgment as to defendant Rubin affirmed. Judgment as to defendant Brooks modified, on the law, by reversing his conviction of conspiracy in the third degree, and the sentence imposed thereon, and the said count is dismissed. As so modified, judgment as to defendant Brooks affirmed. This case is remitted to the Supreme Court, Kings County, for further proceedings pursuant to CPL 460.50 (subd 5). Defendant Brooks and a codefendant, Paul Vario, Sr., were convicted of conspiracy to reward official misconduct, among other crimes. Since we are reversing the conspiracy conviction of codefendant Vario for failure of proof (see People v Vario, 56 A.D.2d 641), the conspiracy conviction of defendant Brooks must also fall. We have examined defendants' other claims of error and find them to be without merit. We note, however, that we have not considered the validity of the "Geffkens" wiretap and the "Bargain Auto" wiretap and bug authorization orders, inasmuch as (1) we agree that the investigation resulting in the instant indictment emanated from an independent source and was not related to or dependent upon information gleaned from intercepted conversations, and (2) even assuming, arguendo, that the taps and bug were illegal, the intercepted conversations might still have been used, as here, to impeach the defendants' credibility on cross-examination (see Harris v New York, 401 U.S. 222, affg People v Harris, 25 N.Y.2d 175; Walder v United States, 347 U.S. 62; United States v Caron, 474 F.2d 506; People v Kulis, 18 N.Y.2d 318). Cohalan, Acting P.J., Margett, Damiani, Rabin and Hawkins, JJ., concur.