Opinion
Argued June, 1972
Decided July 7, 1972
Appeal from the Monroe County Court, DONALD J. MARK, J.
Joseph G. DeMaria for Joseph Rossi, appellant.
Louis P. Iannini for Salvatore Gingello, appellant.
Jack B. Lazarus, District Attorney ( James E. Morris of counsel), for respondent.
Order affirmed.
Concur: Judges BURKE, SCILEPPI, BREITEL and JASEN. Judge BERGAN dissents and votes to reverse in the following opinion in which Chief Judge FULD and Judge GIBSON concur.
Order affirmed.
On the suppression hearing defendants were refused the right to examine notes of Federal agents whose affidavits were the basis of the search warrant, the execution of which resulted in the evidence of gambling on which appellants' convictions rested. The agents testified at the hearing. The basis for refusal of access to the notes was the statement by the prosecutor that they contained confidential matter which could not be redacted.
Whether the notes contained confidential matter not related to this case and, if they did, whether such material could be redacted were problems for the hearing Judge to decide and counsel for defendants were not entitled to see the notes or examine the officers on the matters not related to this prosecution. Counsel for defendants could, however, have been allowed inquiry under careful judicial supervision and limitation as to whether the material to which the notes related was confidential or could be redacted. It was an impairment of a full adversary presentation of the issue of probable cause, for the hearing Judge to examine one of the agents in camera under oath and not in the presence of counsel, without a record, and to make conclusions on the basis of this ex parte testimony of the confidentiality of the notes and the physical ability to redact such material. For this purpose appellants are entitled to further proceedings on the suppression hearing.
Decision should be withheld until appellants have had a further hearing to determine the question of probable cause on issuance of the search warrant.