The opinion
Murphy, J.
(dissenting). Defendant’s conviction rests on the validity of the search warrant; and since I believe it was improperly granted, I vote to reverse the judgment on appeal.
On September 20, 1972, a police officer, accompanied by a “ registered ” confidential informant, appeared before Supreme Court Justice Schwartz to obtain a warrant authorizing a search of a certain specified apartment. In lieu of a written application, as required by statute (GPL 690.35, subd. 1), the officer was permitted to testify orally, under oath, with regard to certain information furnished by said informant. According to the officer, the informant had been in the particular apartment in issue on two occasions (the second at 4 a.m. on the morning of the application) and had observed several persons engaged in the packaging of narcotics. The informant had also viewed two pistols in plain view on an adjacent table.
The informant, though present, did not testify. However, it appears that Justice Schwartz spoke to him 1 ‘ off the record ’ ’, after which she observed: “1 have heard the informer and after hearing the officer the information tallies and I consider that he’s reliable.”
Justice Schwartz thereupon granted the warrant which, without specific request or proper foundation laid therefor, was made executable at any time of the day or night and authorized the executing officer to enter the premises' designated without giving notice of his authority or purpose (CPL 690.35, subd. 3). The warrant was actually executed seven days later and a quantity of narcotics and two pistols found on the premises.
Defendant’s motion to controvert the warrant was denied, without a hearing; after which he pleaded guilty to criminal possession of a dangerous drug in the fourth degree.
It is, of course, axiomatic that a conviction cannot be predicated on what an illegal search reveals'" (cf. People v. Malinsky, 15 N Y 2d 86), since the exclusionary rule covers the fruits of such an unlawful act (People v. Rodrigues, 11 N Y 2d 279, 286).
While I have grave doubts as to the validity of the warrant (particularly the ‘1 anytime ” and ‘ ‘ no-knock ’ ’ provisions thereof) because of the procedural deficiencies alluded to above, I believe the motion to controvert it and to suppress the evidence obtained thereunder should have been granted for a more fundamental reason: it was based upon sworn testimony which relied on information received from an undisclosed informant *593 whose reliability was never established. (Aguilar v. Texas, 378 U. S. 108 ; Spinelli v. United States, 393 U. S. 410 .)
Our Court of Appeals has described the two-pronged test laid down in the above-cited cases as requiring a proper showing that: (a) “ the informant is in fact reliable” and (b) “ the underlying circumstances as to how the informant came by his information demonstrate sufficient probability of credibility to allow the search of the premises or person in question. ’ ’ (People v. Hendricks, 25 N Y 2d 129,133.)
The -second prong of the test is "not seriously challenged here because the informant claimed to speak from first-hand knowledge. (Cf. People v. Munger, 24 N Y 2d 445.) But appellant is persuasive in contending that the first prong of said test— the informant’s reliability—has not been met since the prosecution failed to establish: that the informant was previously known to the testifying officer and had in the past furnished information leading to the arrest or conviction of others; or that there had been a separate objective check of the informant’s report; or that Justice Schwartz properly relied on such information because it had been given under oath, or against penal interest, or was confirmed by other informants. (People v. Hendricks, supra, People v. Wheatman, 29 N Y 2d 337.)
Finally, on the limited issue presented, I would give no weight to Justice Schwartz’s in camera discussion with the informant. Her conclusion, after such inquiry, that his information ‘1 tallies ” with that -of the officer merely confirmed the existence of the informer (cf. People v. Barden, 34 N Y 2d 177) and established the credibility of the police officer; but not the reliability of the informant.
Accordingly, the judgment of conviction should be reversed and vacated, the order denying defendant’s motion to controvert the warrant should be reversed and granted and the, matter remanded to Criminal Term for further proceedings.
MoGtiverh, P. J., and Lupiaho, J., concur in Per Curiam opinion; Kupeermah, J., concurs in an opinion; Murphy, J., dissents in an opinion.
Judgment, Supreme Court, Bronx County, rendered Un July 31.1973. affirmed.