Landers v. O'Connor

• Court: New York Supreme Court
• Writing for the Court: ALBERT H. BOSCH
• Citation: Landers v. O'Connor, 252 N.Y.S.2d 766, 43 Misc.2d 1040 (N.Y. Sup. Ct. 1964)
• Decision Date: 17 August 1964
• Parties: John T. LANDERS, Richard W. Croughan and Herbert J. Miller, Petitioners, v. Frank D. O'CONNOR, District Attorney of Queens County, Bernard M. Patton, Assistant District Attorney of Queens County, Michael J. Murphy, Police Commissioner of the City of New York, John F. Shanley, Deputy Chief Inspector (Police Commissioner Confidential Investigation Unit), and Walter J. Mercer, Foreman of the Grand Jury, Respondents.

Page 766

252 N.Y.S.2d 766

43 Misc.2d 1040

John T. LANDERS, Richard W. Croughan and Herbert J. Miller Petitioners, v. Frank D. O'CONNOR, District Attorney of Queens County Bernard M. Patton, Assistant District Attorney of Queens County, Michael J. Murphy, Police Commissioner of the City of New York, John F. Shanley, Deputy Chief Inspector (Police Commissioner Confidential Investigation Unit), and Walter J Mercer, Foreman of the Grand Jury, Respondents.

Supreme Court, Criminal Term, Queens County, Part I.

Aug. 17, 1964.

John T. Landers, Elmhurst, for Landers and Croughan.

Herbert J. Miller, Kew Gardens, pro se.

Frank D. O'Connor, Kew Gardens, by Benj. J. Jacobson, Asst. Dist. Atty., for the People.

ALBERT H. BOSCH, Justice.

A petition was made by John T. Landers and Richard W. Croughan, attorneys for Joseph Lawless and Jacob Torba, respectively, requesting an order prohibiting the use and projection and submission of alleged wire tap evidence in a matter that is now pending before the Grand Jury, Queens County, in which Joseph Lawless and Jacob Torba are witnesses before said Grand Jury, and why an order should not be made and entered enjoining the use of wire tap evidence and why an order should not be made and entered suppressing any and all wire tap evidence which is, on information and belief, to be submitted to the Queens County Grand Jury, and why such other, further relief should not be granted herein as may be just and proper in the circumstances.

At the time this application was argued before this Court, Herbert J. Miller, Esq. as attorney for Ernest Kabath, joined in the application.

It might be well to dispose of an issue raised for the first time on the oral argument of this motion--namely an endeavor to characterize these proceedings as in the nature of an Art. 78 proceeding under the CPLR § 7801 et seq. If this were so, then, this Court would not be the proper forum.

The Court is of the opinion that there is nothing indicated in the moving papers,--nor in the relief sought, to bring the proceedings within the purview of the applicable CPLR § 7801 et seq. It is, and this Court does so construe it,--a motion addressed to the discretion of the Court.

The petitioners allege that upon information and belief an ex parte order under Section 813-a of the Code of Criminal Procedure had been obtained and as a result of said order, an interception was made, of certain conversation or conversations which may pertain to Joseph Lawless and Jacob Torba who, at the present time has been subpoenaed by the Grand Jury of Queens County.

The petitioners further allege that the evidence which will be submitted to the Grand Jury of Queens County is illegal evidence, and the submission of such illegal evidence will of necessity involve the commission of a Federal crime in violation of Sec. 605 of the Federal Communications Act of 1934 (47 U.S.C.A. § 605). The petitioners argue that the Grand Jury must, according to Sec. 249 of the Code of Criminal Procedure, receive none but legal evidence and that the alleged evidence obtained by reason of a telephonic interception being illegal may not be presented to the Grand Jury.

In support of their position they cite Benanti v. United States, 355 U.S. 96, 78 S.Ct. 155, 2 L.Ed.2d 126, wherein it was held that wire tap evidence obtained by State officers was inadmissible in the trial of the Federal case. They further urged that the decision of Mapp v. Ohio, (367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081) extended the exclusionary rule prohibiting the use of illegal evidence, where evidence obtained as a result of an unreasonable search and seizure, to include the securing of such evidence as would be secured by a wire tap without the permission of the person affected. Furthermore, that an order to wire tap secured pursuant to Sec. 813-a of the Code of Criminal Procedure is in violation of the fourth amendment.

The Court of Appeals is People v. Dinan, 11 N.Y.2d 350, 354-355, 229 N.Y.S.2d 406, 409-410, 183 N.E.2d 689, 690-691, definitely ruled that Mapp v. Ohio, supra, did not overrule Schwartz v. Texas, 344 U.S. 199, 73 S.Ct. 232, 97 L.Ed. 231, and stated

'The identical result does not necessarily follow in case of divulging telephone conversations in violation of section 605 of the Federal Communications Act, inasmuch as a statute may not possess the sanction of a constitutional inhibition protecting against fundamental rights granting immunity from unreasonable search and seizure.

'There is an indication that the Supreme Court of the United States adopted this distinction in deciding Pugach v. Dollinger, 365 U.S. 458, 81 S.Ct. 650, 5 L.Ed.2d 678, in 1961, several months prior to deciding Mapp v. Ohio, supra. The determination of the Federal Court of Appeals in the Second Circuit (277 F.2d 739) was affirmed by the Supreme Court in a memorandum decision citing Schwartz v. Texas, 344 U.S. 199, 73 S.Ct. 232, 97 L.Ed. 231, supra, and Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138. The Pugach case involved a Federal injunction sought against proceedings in a State court, to be sure, and Stefanelli v. Minard held that the Federal courts would not ordinarily restrain the State courts from receiving illegally obtained evidence in advance of trial. Pugach could have been decided exclusively on that theory, as Justice Brennan pointed out in his concurring memorandum by voting to affirm on the authority of Stefanelli alone. But in the face of that the majority affirmed both on that theory and on the rationale of Schwartz v. Texas. We thus have a clear and authoritative decision by the Supreme Court, on the eve of Mapp v. Ohio, reaffirming the Schwartz doctrine that State-obtained wire taps may be admitted into evidence in criminal trials in State courts notwithstanding section 605 of the Federal Communications Act. Is it, then, to be assumed, that the Supreme Court in Mapp meant to overrule Pugach without citing it insofar as Pugach reaffirmed Schwartz, or was the intention of the Supreme Court in deciding Mapp v. Ohio to limit its application to situations where evidence has been obtained unconstitutionally by unreasonable search and seizure (which wire taps are not) without intending to render inadmissible in State courts all illegally obtained evidence where the Constitution has not been violated but only a Federal statute or rule? So, at least, the Second Circuit seems to have thought in Williams v. Ball, 294 F.2d 94, 96, where the court stated: 'We do not read Mapp v. Ohio, 1961, 367 U.S. 643 [81 S.Ct. 1684, 6 L.Ed.2d 1081] as overruling sub silentio Schwartz v. Texas--on which six Justices had expressly relied, only four months earlier, in the per curiam affirmance, 1961, 365 U.S. 458 [81 S.Ct. 650, 5 L.Ed.2d 678], of our decision in Pugach v. Dollinger, 2 Cir., 1960, 277 F.2d 739.''

The Federal Courts themselves recognize the fact that orders for wire tapping issued under Sec. 813-a are being executed in New York State when it stated in Pugach v. Dollinger, 277 F.2d 739, 744, aff. 365 U.S. 458, 81 S.Ct. 650, 5 L.Ed.2d 678: 'We have no reason to think that issuance of injunctions in these two cases would lead New York prosecutors to desist from this time forward from offering wire tap evidence in New York courts as permitted by the law of that state.'

In United States ex rel. Graziano v. McMann, 275 F.2d 284, 285, (2nd Cir.) cert. den. 365 U.S. 854, 81 S.Ct. 806, 5 L.Ed.2d 819, the Court said with reference to the use in a State Court of tapped telephone evidence (pp. 285-286):

'We have no difficulty in unanimously affirming the District Court, despite the fact that evidence presented against appellant was obtained and divulged in violation of 47 U.S.C.A. § 605. We believe that Schwartz v. State of Texas, 1952, 344 U.S. 199, 73 S.Ct. 232, 97 L.Ed. 231, is complete authority for the result we reach. ...