Dampman v. Morgenthau

• Decision Date: 28 April 1993
• Citation: 599 N.Y.S.2d 390,158 Misc.2d 102
• Parties: In the Matter of Frank DAMPMAN, Petitioner, v. Robert MORGENTHAU, District Attorney, New York County, and the New York Times Company, Respondents.
• Court: New York Supreme Court

Page 390

599 N.Y.S.2d 390

158 Misc.2d 102

In the Matter of Frank DAMPMAN, Petitioner, v. Robert MORGENTHAU, District Attorney, New York County, and the New York Times Company, Respondents.

Supreme Court, New York County Criminal Term, Part 56.

April 28, 1993.

[158 Misc.2d 103] Robert Morgenthau, Dist. Atty., New York County by Peter Pope, for Robert Morgenthau.

Proskauer Rose Goetz & Mandelsohn, New York City by Joseph Baumgarten, for the New York Times.

Lopresto, Kulakis & Christofortas, Astoria by Thomas Lopresto, for Frank Dampman.

HAROLD J. ROTHWAX, Justice.

This is an action for declaratory relief ¹ pursuant to CPLR § 3001 to determine the propriety of disclosure, in an arbitration proceeding, of conversations seized by law enforcement officers pursuant to an eavesdropping warrant issued by a justice of this court. The petitioner was intercepted pursuant to the warrant, and the conversations seized were introduced against him in a proceeding to terminate his employment. The respondents, the District Attorney of New York County whose office disclosed the material, and the New York Times Company ², to whom the material was disclosed, rely upon an order of this court as the basis for disclosure of these tapes in context of the arbitration proceeding.

The court finds that this is an appropriate action for declaratory relief. The facts necessary to resolution of the issues presented are not in dispute. The petitioner is not a defendant in a criminal case, but alleges a violation of his statutory right of privacy in the intercepted conversations, pursuant to CPL § 700.65 and CPLR § 4506. This determination is not one which can be made in context of the labor arbitration proceeding, since the arbitrator has neither jurisdiction nor authority over the District Attorney. [See, Matter of Morgenthau v. Erlbaum, 59 N.Y.2d 143, 147-148, 464 N.Y.S.2d 392, 451 N.E.2d 150 [1983].] Moreover, the petitioner does not contend that the office of the District Attorney acted in bad faith, but under misapprehension of the court's order and of the mandate of CPL § 700.65. The court is satisfied that a declaration of the intended scope of its previous order and meaning of the relevant statutes will suffice to protect the interests of the petitioner. Insofar as the petitioner seeks mandatory relief, that relief is denied in the court's discretion. [See, Matter of Morgenthau v. Erlbaum, supra; cf., e.g., Matter of Dondi v. Jones, 40 N.Y.2d 8, 13, 386 N.Y.S.2d 4, 351 N.E.2d 650 [1976].]

This court's jurisdiction to entertain Mr. Dampman's motion is based upon its supervisory role in regard to the sealed tapes and warrant applications, and upon the District Attorney's reliance on a previous order of this court as authority for disclosing these tapes to the Times for use in the arbitration proceeding. [Jud.L. § 140-b; Matter of Alphonso C v. Morgenthau, 50 A.D.2d 97, 99, 376 N.Y.S.2d 126 [1st Dept 1975]; Peo ex rel Doe v. Beaudoin, 102 A.D.2d 359, 363, 478 N.Y.S.2d 84 [3d Dept 1984]].

FACTS

James Galante, Thomas Carrube, Jackie Piervencenti and John Nobile were supervisory employees of the Metropolitan News Company, a wholesale distributor of newspapers and magazines, and were members of the News and Mail Deliverers Union [NMDU]. These men were also subjects of a wide ranging criminal investigation into corrupt practices centering around Metropolitan and allegedly involving the NMDU leadership. As part of this investigation, six court orders were obtained over a period of a year to intercept conversations over telephone lines including those listed to Galante, Carrube and Nobile, and three orders to eavesdrop on conversations including those in Nobile's residence. All of these men were targets of the interception. Judges supervising the various warrants all ordered that the tapes be sealed and that such seal not be broken except upon order of a justice of the Supreme Court, as required by CPL § 700.50[2]. Prior to sealing duplicates of each tape were made for use in the ongoing investigations.

On June 29, 1992 City and Suburban Delivery Systems, a subsidiary of the New York Times Company, purchased Metropolitan News Company. On July 6, 1992 Galante, Carrube, Piervencenti and Nobile were indicted and charged with the crime of Enterprise Corruption [PL § 460.20[1][a]]. The Times suspended the indicted employees pending the outcome of the criminal prosecution.

On July 21, 1992 notice pursuant to CPL § 700.70 including photocopies of the eavesdropping warrants and supporting applications, including daily line sheets were furnished to counsel for the indicted defendants. On July 28, 1992 the assistant district attorney in charge of the prosecution submitted an unsealing order to this court, which noted that "whereas the district attorney has filed the above material consisting of affidavits, linesheets, progress reports, and other papers with this court and making it part of this court's file" and "whereas numerous copies of tapes made during the intercepted conversations must be provided to counsel, a process that can be facilitated through commercial copying", and included the directive that the identified materials "be unsealed and subject to disclosure as part of the court's file". ³ The assistant district attorney did not seek specific authority to disclose the unsealed matter to anyone other than the defendants, and nothing in the order indicated that disclosure to anyone other than the defendants was contemplated. On July 31, 1992 the assistant district attorney notified counsel for the defendants that 1800 master duplicate tapes of conversations seized pursuant to these warrants were being delivered to a commercial studio for duplication upon demand by any defendant.

The assistant district attorney avers that after the unsealing order was signed "pursuant to the language in the order that the materials should be 'subject to disclosure as part of the court file,' the District Attorney's office allowed access" to the materials described in the order to those members of the public and press who requested it. In October 1992 lawyers for the Times requested and obtained from the District Attorney copies of the eavesdropping warrants, affidavits, and progress reports as "material ... in the public record with respect to the industry". This material included summaries of conversations intercepted from October 24, 1990 until October 10, 1991. Among these materials were affidavits of the assistant district attorneys supervising the eavesdropping warrants which recounted conversations seized. Among these were conversations intercepted over Carrube's residential telephone line between Carrube and Frank Dampman. Dampman was an employee of the Times' subsidiary and member of the NMDU. Based upon the seized conversations, the Times terminated Dampman's employment, effective November 2, 1992. The NMDU filed a grievance on Dampman's behalf, seeking reinstatement.

On November 24, 1992 a meeting occurred pursuant to the labor arbitration agreement between the union and the Times. Dampman was represented at the meeting by an attorney who also represented one of the indicted defendants, Piervencenti. According to the Times' representatives, the attorney referred to tape recordings he had received in connection with his representation of the defendant and asserted that the tapes exculpated Dampman in regard to the basis for his termination. The attorney denies that he made the assertion or offered to play tapes. In any event, it is agreed that Dampman's conversations obtained from the warrant application affidavits of various assistant district attorneys were referred to by the Times' representatives. In December 1992, attorneys for the Times requested and received "a number of" duplicate tapes intercepted pursuant to the eavesdropping warrants, including the tapes of Carrube and Dampman.

The arbitration hearing began on February 1, 1993. Dampman's attorney objected to the use of the tape recordings on the ground that they were unlawfully in the possession of lawyers for the Times. Dampman's attorney specifically argued that the tapes were not matters of public record, as asserted by the attorneys for the Times, since they had never been presented in a court of law. The arbitrator stated that if the tapes were not admissible in evidence, he would not consider them. The arbitrator asked the parties to brief the issue. Following an adjournment, Dampman's attorney citing Criminal Procedure Law § 700.65, argued that disclosure of the tapes by the District Attorney to the attorneys for the Times was unauthorized. The arbitrator apparently was unpersuaded. Dampman's attorney offered to obtain a ruling from "the judge who actually signed the order." Apparently it was agreed between the attorneys that the hearing would proceed subject to the subsequent suppression of the tapes if required. The attorneys for the Times then played the tapes. In response, Dampman's attorney apparently also played a tape he had obtained in the course of representing Piervencenti. The arbitrator adjourned the hearing without reaching a determination, pending resolution of the issue of the disclosure of the tapes.

Dampman now seeks a determination by this court whether the tapes were properly disclosed by the District Attorney to lawyers for the Times pursuant to the July 28, 1992 unsealing order.

STANDING

Dampman is an "aggrieved person" within the meaning of CPLR § 4506[2][b] in that he was intercepted during execution of the Carrube warrant. CPLR § 4506[1] bars the use of unlawfully intercepted conversations "in any trial, hearing or proceeding before any court or grand jury, or before any legislative committee, department, officer, agency, regulatory body, or other authority of the state, or a political subdivision thereof ..." The statute makes clear that exclusion extends to conversations obtained under an eavesdropping warrant which is...