SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
June 13, 1968
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
JEROME BROFFMAN, APPELLANT
Concur -- Botein, P. J., Stevens, Eager, Capozzoli and Tilzer, JJ.
The testimony of Dr. Kesselman, a psychiatrist, with respect to statements made to him by the co-defendant Hogan during a March, 1967 interview, which fully and directly implicated Broffman, unduly prejudiced Broffman and served to deny Broffman a fair trial. There had been notice, previous to such testimony, of the possible nature of the forthcoming testimony and the prejudicial references could have been redacted (cf. People v. Burrelle, 21 N.Y.2d 265). During the trial it became known that Broffman's telephone had been tapped. Certain information elicited thereby was admittedly helpful to the prosecutor in the interrogation of witnesses. Despite the request of defendant to ascertain if his phone had been tapped this information was not directly forthcoming until the end of the People's case. Defendant was entitled to challenge the sufficiency of the underlying affidavit upon which the order was based (see, People v. McCall, 17 N.Y.2d 152; People v. Morhouse, 21 N.Y.2d 66). At or about the same time defendant learned, as indicated, that information gleaned from the transcriptions had been helpful in the interrogation of witnesses or at least of a witness. In light of Mel Cohen's testimony and his professed inability on cross-examination to recall certain matters about which he was questioned, it cannot be concluded with certainty that transcriptions of the tapped telephone conversations in which Cohen participated would have served no useful purpose in cross-examination. At any rate defense counsel should have been permitted to determine what use, if any, defense counsel would make of them (cf. People v. Rosario, 9 N.Y.2d 286), and not have this matter decided by the court or the People. At the very least there should be a preliminary hearing on the issue.
Judgment herein appealed from, unanimously reversed on the law, and a new trial directed as to defendant-appellant Jerome Broffman.
© 1998 VersusLaw Inc.