People v. Berger

Decision Date07 July 1966
Citation18 N.Y.2d 638,219 N.E.2d 295,272 N.Y.S.2d 782
Parties, 219 N.E.2d 295 PEOPLE, etc., Respondent, v. Ralph BERGER, Appellant.
CourtNew York Court of Appeals Court of Appeals

Appeal from Supreme Court, Appellate Division, First Department, 25 A.D.2d 718, 269 N.Y.S.2d 368. Joseph E. Brill, New York City (Bernard J. Levy, Joseph E. Brill, New York City, of counsel), for defendant-appellant.

Frank S. Hogan, New York City (H. Richard Uviller, Jeremiah B. McKenna, New York City, of counsel), for respondent.

Indictment charged that defendant and others conspired to bribe a public officer attached to the New York State Liquor Authority with intent to influence him in respect to issuance of licenses to sell liquor at certain clubs located in New York County. The defendant made a motion to suppress evidence. The People stipulated that, without the evidence and leads obtained from eavesdropping devices which had been placed in two offices under authority of ex parte court orders issued pursuant to Section 813-a of the Code of Criminal Procedure, the District Attorney would have had no information on which to present a case against the defendant. The motion to suppress evidence was denied.

Defendant was convicted on two counts of conspiracy in violation of Section 580 of the Penal Law, Consol.Laws, c. 40.

The Supreme Court, Special and Trial Term, New York County, Mitchell D. Schweitzer, J., entered a judgment, and the defendant appealed.

The Appellate Division, entered a judgment affirming the judgment of the Special and Trial Term.

The defendant appealed to the Court of Appeals by permission of an Associate Judge of the Court of Appeals, contending that the ex parte court orders which permitted eavesdropping were invalid because they were based on inadequate showing of reasonable grounds for granting them, and that the eavesdrops, which were of the room type rather than the telephone wire tape type, were unconstitutional as an intrusion into private premises.

Judgment affirmed.

All concur except DESMOND, C.J., and FULD, J., who dissent and vote to reverse on the ground that the electronic eavesdrops inside two offices, one of which was a law office, were unconstitutional under the Fourth Amendment as a physical intrusion into private premises and as a 'general search' for evidence. (See Siegel v. People, 16 N.Y.2d 330, 333, 266 N.Y.S.2d 386, 213 N.E.2d 682, per Desmond, C.J., (dissenting); People v. McCall, 17 N.Y.2d 152, 161, 269 N.Y.S.2d 396, 216 N.E.2d 570, per...

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9 cases
  • Berger v. State of New York
    • United States
    • United States Supreme Court
    • June 12, 1967
    ......In 1934 the Congress outlawed the interception without authorization, and the divulging or publishing of the contents of wiretaps by passing § 605 of the Communications Act of 1934. 3 New York, in 1938, declared by constitutional amendment that "(t)he right of the people to be secured against unreasonable interception of telephone and telegraph communications shall not be violated," but permitted by ex parte order of the Supreme Court of the State the interception of communications on a showing of "reasonable ground to believe that evidence of crime" might be ......
  • People v. Kaiser
    • United States
    • New York Court of Appeals
    • December 7, 1967
    ...... The court unanimously affirmed his conviction. The defendant appeals to this court by permission of the Chief Judge. .         The defendant argues on this appeal that the Supreme Court in Berger v. State of New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), struck down as unconstitutional on its face the very statute which authorized the wiretap order and therefore the evidence seized pursuant to that order was erroneously admitted. The defendant urges, in addition, that all ......
  • People v. Grossman
    • United States
    • New York Supreme Court Appellate Division
    • December 27, 1966
    ......Givens, 26 A.D.2d 684, 272 N.Y.S.2d 466; People v. Berger, 18 N.Y.2d 638, 272 N.Y.S.2d 782, 219 N.E.2d 295; People v. McCall, 17 N.Y.2d 152, 269 N.Y.S.2d 396, 216 N.E.2d 570; Black v. United States, 385 U.S. 26, 87 S.Ct. 190, 17 L.Ed.2d 26, decided Nov. 7, 1966; People v. Carroll, 38 Misc.2d 630, 238 N.Y.S.2d 640; State v. Bisacci, 45 N.J. 504, 213 A.2d ......
  • Galante v. Steel City Nat. Bank of Chicago
    • United States
    • United States Appellate Court of Illinois
    • November 3, 1978
    ...... asserts the Fifth Amendment [66 Ill.App.3d 483] privilege against self-incrimination during a deposition was articulated by this court in People ex rel. Mathis v. Brown (1976), 44 Ill.App.3d 783, 3 Ill.Dec. 475, 358 N.E.2d 1160. That case involved the right of a defendant in a paternity ......
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