People v. Surita

Judgment of conviction of defendants for unlawful possession of narcotics as a felony, in violation of subdivisions 2 and 3 of section 1751 of the Penal Law and with possession of narcotics as a misdemeanor, unanimously reversed on the law and a new trial granted. The trial court, on this post-Rosario trial, should have granted defense counsel’s request for an examination of the minutes of the Grand Jury testimony of the witness Byrne, for use for cross-examination purposes; and, upon the record here, the denial of his request constituted prejudicial error requiring reversal of the conviction. (See People v. Rosario, 9 N Y 2d 286; cf. People v. Askew, 15 A D 2d 727.) Under the circumstances, we do not reach the question of whether or not on this pre-Mapp trial there was also reversible error in the receipt of the evidence now claimed by defendants to have been obtained in the course of an alleged unlawful search and seizure. (Cf. People v. Wade, 12 N Y 2d 61; People v. Kelly, 12 N Y 2d 248.) The questions with relation thereto should be reserved for determination on the evidence to be developed on a new trial which will now be conducted in the light of the decision of Mapp v. Ohio ( 367 U. S. 643 ). Concur — Botein, P. J., Breitel, Stevens, Eager and Steuer, JJ.